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Labour & employment law column by Robert Smithson

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.
 

New Fuel Prepay Rules Take Effect

The B.C. government has enacted new workers compensation rules governing employees working alone or in isolation. These rules come into effect on February 1, 2008.
 
There are three new 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 new set of rules applies to all employers. They 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.
 
The second new set of rules applies to employers who have workers who are working alone or in isolation in retail premises between 10:00pm and 6:00am. These employers must develop written procedures for handling money and the workers must be trained in these procedures. 
 

Holiday Party Fallout of Another Kind

I have written many times on the topic of avoiding litigation resulting from serving alcohol to employees at office parties. That scenario can, and has, led to expensive liability for employers when a tragic accident is the result.
 
Another way that holiday parties can cause an employer to end up being sued is when one of its employees engages in sexual harassment.  In these instances, the employer is put in the difficult position of having to decide whether the offending employee must be dismissed summarily.
 
A recent court decision out of Alberta illustrates this very scenario. Sean Hodgins was a senior manager working with the St. John Ambulance. In December, 2003 Hodgins was at a Christmas party involving the staff of the employer’s Edmonton branch and provincial headquarters.
 

Workplace Is No Place For Threats

Now and then every married employee vents about her employment to her spouse. When the spouse reacts by saying that he wants to "beat" and
"kill" the boss, the employee had best not repeat those statements in the workplace.
 
That's because, in B.C. at least, spreading that kind of information around can amount to just cause for summary dismissal. The case in
point involved an employee, Dilg, who was fired from her employment as a dental assistant at a Dr. Sarca's dentistry practice in Kitimat.  
 
Due to a variety of circumstances over a period of time, Dilg's relationship with Dr. Sarca had deteriorated. Both were unhappy with
the other, and they'd had angry confrontations in the workplace in front of patients.
 
In 2007, Dilg was angry about what she perceived to be a demotion. Her anger created an atmosphere of tension in the office and Dilg discussed
with other staff her perception of having been treated unfairly by her employer. 
 

Workplace Drug Testing Enjoying A Rare High

In 2006, the Alberta Court of Queen’s Bench considered the situation of John Chiasson. Mr. Chiasson was offered a job by Kellogg Brown & Root but was dismissed only a few days later after his drug test revealed recent marijuana use. 
 
Chiasson filed a complaint of discrimination with the Alberta Human Rights and Citizenship Commission. The human rights panel dismissed Chiasson’s complaint on the basis that, while he was an admitted user of illegal narcotics, there was no evidence he suffered from the disability of addiction. 
 

Strange Tales From The Employment World

In the latter half of 2007, as expected, weird things continued to occur in the employment context. Here are a few of the stranger events.
 
In Australia, Durex was seeking testers for its condom products. Durex’s advertisements posed the question, “Got what it takes to be an official condom tester?” next to a photograph of a busty woman in a revealing uniform. The advertisement went on to say, “With this job on your CV, it really will be a chance to brag to your mates about the special skills you possess, not to mention that your new role will work wonders with the opposite sex”.
 
Durex’s so-called “bed-testing” positions were unpaid but participants were eligible for free packs of Durex products and a chance at a bonus prize of $1,000. Testers were required to report back on the “feel” and “performance” of Durex’s products.
 

Walking The Walk As An "Employer of Choice"

In these days of the shrinking labour force and shortages of employees in many industries, it is fashionable for companies to portray themselves as an “employer of choice”. This is a fancied-up way of saying that the company is a great place to work.
 
Employers seeking to hire the cream of the employee crop have always sought ways to distinguish themselves from the crowd. Recently, human resources experts have urged employers to become more creative in offering enticements such as progressive compensation arrangements, flexible work schedules, support for a variety of family situations, etc. 
 
It is not at all unusual to read articles offering up the latest twist on the working relationship as the sure road towards establishing a company as an employer of choice. I wonder, however, whether either consultants or employers are giving due consideration to matters which go beyond the recruitment stage. 
 

Tape Recorded Profanity is Employee's Downfall

Just cause for summary dismissal from employment is a threshold that can often seem unattainable to employers. The standard is a high one because summary dismissal is the ultimate form of discipline, carrying with it the penalty of the loss of the right to working notice (or pay in lieu thereof).
 
Just cause may be applied to both a single instance of egregious misconduct or to a pattern of ongoing unacceptable conduct. Generally, an employer faced with a difficult employee must engage in a series of steps before it can be determined the employee’s conduct represents a fundamental breach of the employment contract. 
 

B.C. Acts To Protect Lone and Isolated Workers

Effective February 1, 2008, B.C. will enact new workers compensation rules governing employees working alone or in isolation. These rules are intended, among other things, to address the underlying causes of the tragic death of Maple Ridge gas station attendant Grant Depatie.
 
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. That means workers who are not in the vicinity of others who would be aware of the employee’s needs and would be willing and capable of providing assistance within a reasonable period of time.
 

Armed Forces Reservists to Receive Job Protection

The federal government will be introducing legislation protecting the jobs of armed forces reservists while they are absent on training and active duty.  The legislation, announced recently by federal labour minister Jean-Pierre Blackburn, would apply to armed forces reservists employed by the federal government. It would also apply to private sector employers in the federal jurisdiction (chartered banks, railways, airlines, interprovincial trucking, and a few other selected industries). 
 
The concept of the planned legislation is that, when the reservists return from active duty, their employment would have been preserved for them. In addition, the legislation will include measures protecting pensions and benefits of the reservists and their dependents.
 
There are approximately 30,000 part-time and full-time reservists with the armed forces at any given time.   Their military duties and training obligations can require them to be absent from home, and work, for extended periods of time.

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