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Labour & employment law column by Robert Smithson

Occupational Requirements and Older Workers

The elimination of mandatory retirement at age 65 has already begun to have one predictable effect. Employers are struggling to figure out how to ease older employees, who may no longer be able to safely perform their job, out of the workforce.
 
This is the result of changes made to B.C.’s Human Rights Code, effective in January of 2008. The key change was that human rights protections were extended, in the employment context, to persons who are 65 years of age or older. 
 
As a result, retirement policies triggered solely by advancing age are now illegal. Employers can still discriminate on the basis of age against persons younger than 19 but, when it comes to older employees, employers are no longer able to rely on the simple fact of aging.
 

Employment Law Is Just Rock, Paper, Scissors

It amazes me how few employers truly understand the sources of law, and their interaction, which impact the employment relationship. In trying to understand the various statutory, contractual, and common law influences on the employment relationship, all they need to know are the rules of rock, paper, scissors.
 
Although I didn’t really play this game as a youngster, I understand the basic rules are that paper defeats rock, scissors defeat paper, and rock defeats scissors (purists would say paper covers rock, scissors cut paper, and rock crushes scissors). As it happens, these same rules are applicable to the world of employment law, such as such as the law of wrongful dismissal.
 
When there are no other legal influences (such as a contract or a statute) by which to interpret the relationship, there is always the common law. This is the accumulation of law as developed in the reasons for judgment issued by judges in court every day.

B.C.'s Government Taking Action To Protect Workers

In the last few months, B.C. government departments have implemented a dizzying array of workplace rules designed to protect workers.
 
Readers of this column will be familiar with the new “working alone or in isolation” rules. The new rules comprise three distinct categories of workplace protection for employees who are working in circumstances where assistance would not readily be available in case of an emergency. 
 
The first of the new sets of rules applies to all employers. All employers must identify, eliminate, and control hazards before a worker is assigned to work alone or in isolation. And, they must develop and implement a procedure for checking the well-being of any worker who is assigned to work alone or in isolation.
 

B.C. Ferries Disaster Demonstrates Abdication of Duty

One of many reports into the tragic sinking of the Queen of the North, this one authored by the Transportation Safety Board, was released last week. It indicates that the navigational crew aboard the doomed ferry failed in executing their responsibility for the safety of the vessel and its passengers and crew.
 
The T.S.B.’s findings tell a tale of disabled safety systems, raise questions about crew training and (above all) speak of inattention on the part of the navigational crew. They reveal obliviousness to the danger into which the ship was sailing.
 
On March 22, 2006 at 12:22 a.m., the Queen of the North plowed into Gil Island at full speed.  The ship had sailed through a critical course change at Sainty Point and plowed straight on into Gil Island. After drifting for a little over an hour, the ship sank in 430 metres of water. Ninety nine passengers and crew were rescued, but two died.
 

Should Permissible Payroll Deductions Be Expanded?

British Columbia’s Employment Standards Act governs the range of payroll deductions which are permissible. Aside from the normal statutory deductions, the range of allowable deductions is extremely narrow and is jealously guarded by the Employment Standards Branch. I have to wonder whether the Branch is being too stingy in the categories of deductions it allows.
 
The first rule for employers to understand is that all deductions must be permitted by the Act or by some other statute of B.C. or Canada.   Any other deduction or payment out of the employee’s wages is prohibited.
 
The types of normally permissible deductions are listed in the Act. Employers may make deductions which are required by any statute of B.C. or Canada. This includes, for instance, the usual deductions for income tax and for employment insurance and Canada pension plan premiums.
 

Don't Blame Employees for Employer's Deeds

Is it fair to saddle an employee with the past deeds of his employer? It’s not a frequent occurrence but occasionally an individual is defamed by having been publicly associated with the actions of a former employer.
 
One such case occurred recently in the Okanagan. Endymion Holdings Ltd. (doing business as Info-Tel) circulated a printed bulletin containing statements about Mark McSeveney and his new company, Maple Leaf Directories.
 
Info-Tel and Maple Leaf are competitors in the business of publishing telephone directories. Prior to founding Maple Leaf in 2006, McSeveney had worked for a third telephone directory company which also was a competitor of Info-Tel’s.
 

Collective Bargaining Proves Its Worth

I’ve often been heard to say that, in many ways, trade unions are no longer relevant. One area, however, where unions can still earn their keep is in the process of collective bargaining.
 
In times gone by, unions provided much-needed representation to workers on issues such as workplace safety, employment standards (wages, hours of work, etc.), and human rights. They stood up for workers at a time when workers were powerless to represent their own interest.
 
Over a span of many decades, much of unions’ historical role was usurped by governments, provincial and federal. All jurisdictions in Canada now have well-established workers compensation, employment standards, and human rights legislation. In each instance, there is also an administrative body entrusted with the task of ensuring employers’ compliance.
 

Employers Won't Be Cheering Another Statutory Holiday

February 18th, the third Monday of the month, will be celebrated as a day off in Ontario and Manitoba this year. Chances are, within a few years it will have become a statutory holiday across the country.   
 
Many people will receive this news in a cheerful way. In my house, the reaction was, “That would be great. We could really use a bit of a break right about now.”  I suspect, however, that most employers aren’t likely to be quite as thrilled by the possibility of a new statutory holiday.
 
Whenever talk of statutory holidays comes up, I’m reminded of a classic scene in one of my favourite movies. Every December 24th, it’s a minor tradition in our household to watch “A Christmas Carol” (also known as “Scrooge”).
 

Employers Climbing on Older Workers' Bandwagon

The shiny, new era of the elimination of mandatory retirement policies in British Columbia is but a few weeks old. That legal change seems to have come at an opportune moment for older workers.
 
Regular readers of this column will know that, on January 1, 2008 the concept of mandatory retirement in B.C. became a thing of the past.  Our Human Rights Code was amended to extend human rights protections to workers who are 65 years of age or older. 
 
The primary impact of that change was to render unlawful retirement policies triggered solely by the advancing age of employees. Except in very rare circumstances, employers can no longer rely on the simple fact of aging as the basis for imposing retirement.
 

Courts recognize liability of employment agencies

In good times, when candidates for employment are plentiful, many employers utilize employment agencies to locate talent. In tough times, when the labour pool seems particularly lean, employers may rely even more heavily on these outside consultants.
 
There is a lot of wisdom to that practice. Employment
agencies take one aspect of the hiring process, recruitment, and make it their specialty. By putting focus on this one task, their network of possible candidates is extensive and their expertise in screening applicants is well-honed.
 
But by placing their trust in an agency (known, variously, as placement or hiring agencies and more informally as headhunters), employers take a leap of faith that the agency truly has the employer’s best interests at heart. In that respect, the relationship is no different than between a client and any professional organization.
 

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