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Labour & employment law column by Robert Smithson

Construction Industry Takes Lead In Workplace Impairment Testing

In August of 2008 B.C.’s construction employers and unions announced a joint policy aimed at reducing the occurrence of workplace drug and alcohol impairment. Their Substance Abuse Testing and Treatment Program Policy is an ambitious attempt to identify workplace impairment and to prevent related accidents.
The Policy only applies to unionized settings in the construction industry but non-union employers would do well to adopt its framework for their own purposes. The Policy tackles many of the difficult legal issues associated with workplace testing and the parties are owed a pat on the back for even attempting to navigate the many obstacles.
As I’ve said before, workplace testing continues to be a very sticky issue for management and unions alike. 

Think Twice Before Complaining About Your Boss

It’s the last resort for the frustrated employee who is fed up with his boss, the final step before walking out the door and finding a job elsewhere. It’s the complaint letter, directed to higher authorities within the organization laying out a range of grievances about a manager and it’s not without risk.
Ignoring the (substantial) political risk inherent in opening up about your manager’s many and varied shortcomings, there is a legal risk as well. As a result, employees should think twice (or, perhaps, thrice) before firing off such a missive.
It seems these letters generally contain three categories of complaints: my boss treats staff poorly, she doesn’t know what she is doing, and he makes it impossible for me to do my job. These are, to be sure, serious allegations and the author of the letter should be expecting an unreceptive audience.

To Read Or Not To Read The Liability Waiver

The liability waiver might be said to be the Rodney Dangerfield of legal documents. People rarely read the documents they sign before engaging in a dangerous activity and they often outright scoff at the enforceability of the waiver’s contents.
I have heard more than one person say, “I didn’t read it, so it can’t be held against me”. Like most generalities spouted about the workings of the law, this one is inaccurate most of the time.
The legal reality is there is a common law rule that parties will be bound by such a document, even if they haven’t read it. There are, however, exceptions to this rule. Employers who have employees sign a liability waiver before a recreational activity or as part of their hiring process would be well-advised to understand their nuances.

It's The End Of Wallace As We Know It

Canada’s superior courts just keep cranking out the hits when it comes to labour and employment law. Their most recent chart-topper appears to bring to an abrupt end the era of so-called “Wallace damages”.
The common law of employment, for the last ten years or so, has allowed fired employees to claim damages for bad faith actions by their employer. These bad faith damages are also referred to as “Wallace” damages for the 1997 Supreme Court of Canada decision in which the concept was introduced.
Bad faith can refer to any action on the employer’s part which makes the (already bad) situation of being fired even worse for the employee. The legal foundation for a claim for Wallace damages is the employer’s common law obligation to deal with its employees in good faith. 

Employers Need Certainty in Post-Employment Competition Rules

Most of the difficult issues in employment law have been ironed out by the courts. That is the inevitable effect of hundreds of decisions by judges every year touching on all aspects of the employment relationship.
One area that still seems to lack a sufficient degree of certainty is the enforceability of restrictions on post-employment competition. This uncertainty is highlighted when lower court decisions on this topic are frequently overturned on appeal.
Various forms of restrictive covenants are utilized by employers to govern the post-employment activities of key employees. The employer seeks to protect itself from damage imposed by former employees engaging in competitive business activities. 

Getting Back to Basics with Employment Contracts

As time passes in the world of the employment relationship, many aspects of the law seem to change. Governments change statutes and courts re-write the common law on almost a daily basis. One thing which remains constant is the value of a written employment contract.
It is, as I have repeated many times, an employer’s best (and, in some cases, only) opportunity to dictate its preferred employment terms.    Employers simply should not be without binding, enforceable contracts of employment.
Employment contracts can contain many different versions of terms which are specific to a particular relationship. It definitely makes sense to tailor the employment contract rather than using a generic version. Employers should, however, give consideration to including at least some, if not all, of the following items.

Supreme Court Tinkers With Duty to Accommodate

I have often stated that dealing with disability-related absenteeism issues is the most challenging task a human resources person faces. The legal framework of the employer’s duty to accommodate is so hazy that even the courts have difficulty agreeing on what is required.
As an example, the Supreme Court of Canada has just released another decision attempting to explain the employer’s duty to accommodate an employee’s disability. I’m not certain this decision is any more practically useful to employers but, if nothing else, the Court does seem to have eased the accommodation threshold somewhat.
Back in 1999, the Supreme Court of Canada issued two landmark decisions which are now referred to as the “Meiorin” and “Grismer” decisions. These decisions drastically altered the approach which employers must take when dealing with employees whose characteristics call for accommodation. They form the basis for the present legal standard of accommodation.

Pension Plans Suddenly A Source of Excitement

It is a rare day, indeed, when the phrase “bona fide pension plan” fills the hearts of men and women with excitement.  The reality is that, unless you have already retired or are fast approaching that point, you might drift off for a quick snooze during a conversation about pensions.
The Supreme Court of Canada, however, with its most recent proclamation on the realm of employment law, may be creating some excitement around pensions (at least amongst employment lawyers). Our country’s highest court has issued its interpretation of the phrase “bona fide” as it relates to pension plans. 

Punitive Damages Are Alive And Well

The big money in employment–related litigation seems to be found in claims which support awards of punitive and aggravated damages. It appears that employers are willing to provide ample testing grounds for these damages claims.
Only a couple of weeks ago, I wrote about the Supreme Court of Canada reining in a punitive damages award against Honda Canada Inc. In that case, a lower Ontario Court had set a precedent by issuing one of the richest ever wrongful dismissal awards in Canadian history. 
Keays had been a long-term employee at Honda’s Ontario production facility. He was found to be a dedicated and conscientious employee who had made his employment at Honda his life’s work. He had, however, experienced ongoing health problems which resulted in a medical leave and the collection of disability benefits.

Workplace Investigators: Check Your Insurance

As long-standing as it is, the law relating to employment and wrongful dismissal really doesn’t experience many ground-breaking changes. One brand new development, however, will have private investigators checking their insurance policy.
The Ontario Court of Appeal has re-framed the tort of negligent investigation in a way which permits employees to sue a private investigator hired by their employer. If the investigator performs its function in a negligent manner, such that the employee suffers a loss, the employee may pursue a remedy directly from the investigator.
This result arose out of a set of circumstances which, if they hadn’t had such a negative effect on the employee, would be comical. Joao Correia, 62, worked for Canac Kitchens, a division of Kohler Ltd. and was a long-serving supervisory employee.


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