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Labour & employment law column by Robert Smithson

How Not To Accommodate A Disabled Employee

Every employer is (or, at least, should be) aware of its statutory duty to accommodate disabled employees. It seems, however, that some are more effective at meeting this duty than others. Or, perhaps it’s more appropriate to say that some are worse at it than others.
The statutory duty, arising out of provincial and federal human rights legislation, obligates the employer to take certain steps in enabling the disabled employee to become, or return as, a functioning member of the workforce. The employer must treat this obligation in a serious manner, patiently and carefully assessing the disabled individual’s condition.
It’s probably true that most employers have now come to understand their duties and to apply them in an appropriate manner. Every once in a while, however, a story comes along that makes employment lawyers and human rights advocates shake their heads. 

Disclosing Workplace Relationships Is The Best Strategy

Let’s face it, once we are sprung from high school or a post-secondary institution of one sort or another, the workplace becomes our primary venue for socializing. Notwithstanding the occasional (or even frequent) visit to the local watering hole of choice, we still spend more hours in the presence of co-workers than any other group. 
Despite what some employers would like to believe, the workplace is where a significant portion of employees’ lives play out. It is not a sterile laboratory in which employees’ real lives are suspended for eight hours each day. Surveys have indicated that over one half of employees have been romantically involved with a co-worker and almost one fifth of employees met their spouse at work. 

Protect Your Employees By Not Serving Them Alcohol

When Hallowe'en is past and holiday lights are making their appearance, we can be sure that office party season isn't far behind. It's this time of year when employees face a heightened risk of accidents (primarily vehicular) due to impairment. That's hardly an upbeat, "seasons greetings", way for me to start off, but it's a message every employer needs to hear.
Canadian court cases have firmly established the employer’s duty of care towards employees who consume alcohol at company events. The employer has a duty to take active steps to prevent injuries as a result of its employees’ alcohol consumption. Put another way, the employer’s duty is to ensure its employees do not become so intoxicated as to interfere with their ability to return home safely. 

Courts usurping role of employment standards tribunal

The traditional, and only, avenue for enforcement of employment standards rights in B.C. used to be a statutory complaint submitted via the Employment Standards Branch. The Employment Standards Tribunal’s monopoly on adjudicating claims for items such as overtime pay now seems to have come to an end.
Until very recently, B.C.’s courts had refused to hear and decide claims which arise out of the provisions of the Employment Standards Act. The courts took the view that a statutory claim could only be pursued through the complaint procedure set out in the Act.
B.C.’s judges have now adopted a more open-minded approach to employees pursuing statutory claims in court. The new approach, enunciated last year in B.C.’s Macaraeg decision, is to treat the contents of the Act as implied terms of the contract of employment.

Mandatory drug testing not as easy as it seems

The tragic sinking of B.C.'s ferry, the Queen of the North, combined
with recent Transportation Safety Board findings arising from that
accident have led to calls for mandatory drug testing in the
transportation industry.  It's easy enough to react emotionally to this
tragedy with a call for tough drug testing measures, but it's a whole
lot harder to make that approach work.

The Transportation Safety Board indicated findings of marijuana use
among crews on B.C. Ferries' northern routes.  That, without any doubt,

Coping with the retirement of mandatory retirement

I can confidently predict that, on the morning of January 1, 2008, the world will not come to an end. The sun will come up (here in the sunny Okanagan valley, at least), employees will go to work and grumble about their bosses, and managers will go to work and grumble about their employees. Almost everything will be like any other day at the office.
One thing, however, will be different. Employees at, or over, the age of 65 in British Columbia will no longer fear the imposition of mandatory retirement. 
That is, of course, if they ever did fear it. Statistics indicate that few Canadian workers are actually forced to leave the workforce because of their employer’s mandatory retirement policy. One recent survey indicates only approximately 14% of males and 9% of females named the existence of a mandatory retirement policy as one of their reasons for retiring.  A Statistics Canada study, “Canada’s Labour Market At A Glance”, indicates the median retirement age in Canada is 61.

A tale of two vacations

Dealing with requests for annual vacation time by employees is a
managerial task that goes along with being an employer.  Generally, the
scheduling of employee vacation time goes off without a hitch but there
are occasions when the employer and employee butt heads over the issue.

When employers consult an employment lawyer for advice on this topic,
the question posed is usually something like, "Do we have the authority
to decide when an employee can take her vacation?"  To the chagrin of

School board can’t fire convicted killer who lied about record

How would you feel, as an employer, if you found out an employee lied about his criminal past when filling out his application form? How would you feel if you found out he is a convicted killer? Would you feel that was a sufficient basis to dismiss him from his employment?
This very question was answered recently in Quebec, first by an arbitrator and then by that province’s Superior Court. In a result which will be shocking to many employers, the answer was that the employee could not be dismissed.
Quebec’s largest school board, the Commission Scolaire de Montreal, hired the individual in 1998. In applying for the job, he filled out an application form. In response to the question, “Have you ever been convicted of a criminal offence involving violence?”, he replied that he had not.

When does a disability frustrate the employment relationship?

I routinely tell clients (and anyone else who cares to listen) that dealing with employees on extended disability leave is one of the toughest challenges facing the human resources professional. One of the very complex aspects of this challenge is determining the point in time when the absence “frustrates”, in a legal sense, the contract of employment. 
The B.C. Court of Appeal has explained the legal concept of frustration this way: “A contract may be brought to an end by operation of law and the parties discharged from further performance if, without the fault of either party, the circumstances in which it was expected to be performed have changed so radically that performance would be impossible or at least something fundamentally different than was initially contemplated”. In practice, this means that when a contract is interrupted by some outside influence making it impossible to perform, the contract simply comes to an end with no further obligations on the part of either party.

R.C.M.P.’s culture shift typifies whistleblower challenge

The R.C.M.P.’s commissioner wants to change his force’s culture to encourage members to raise concerns about internal problems. William Elliott says he wants to make it easier for lower-ranking members of the force to blow the whistle on questionable practices.
The bad news for the R.C.M.P. is that it appears it will take a fundamental culture shift for that to happen. The good news is that they are not alone in confronting this challenge.
A recent study of the R.C.M.P. indicated that rank-and-file members tend to keep complaints about the internal workings of the force to themselves. They fear negative repercussions for speaking out. This is, in my belief, a dynamic that is more likely to exist (and more likely to get worse) the larger an organization becomes. 


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