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Labour & employment law column by Robert Smithson

Having The Qualifications Doesn’t Mean Getting The Job

The longer I practice as an employment lawyer, the more I wonder about some of the claims which are litigated. Some people just seem determined to utilize the legal system to achieve a benefit they weren’t able to obtain on their own.

Employment lawyers (cursed, as we are, with the obligation to read court decisions with some regularity) marvel at some of the claims which are advanced. After all, litigation is not an inexpensive process and embarking on that path without a well-established form of claim is rarely a successful (or profitable) venture.

Charter Right to Collective Bargaining Proclaimed

In the dictionary, next to the phrase “Gordian knot”, there should be a photograph of a collective agreement between the B.C. government and a public sector union. How better to describe the strange, turbulent world of public sector collective bargaining in this province?

Five years ago, B.C.’s Liberal government enacted the Health and Social Services Delivery Improvement Act. This legislation overrode the collective bargaining process in relation to hospital workers.

Damages for loss of career confirmed

Followers of court decisions might be forgiven for thinking that large damage awards given by lower courts tend to be overturned by the courts of appeal. This is, in fact, often the case and perhaps that's the way the system should work (lower courts stretching the boundaries of previous decisions and the higher courts stepping in when the limits have been stretched too far).
There are many instances of this trend in the employment context. A recent example involved the record-setting $500,000 punitive damages award by a lower Ontario court against Honda Canada. That whopper of an award was reduced to $100,000 upon appeal.
In B.C., however, we have a recent example which bucks that trend. The case, Sulz v. Canada (Attorney General) featured a claim by a former R.C.M.P. officer that her immediate supervisors harassed her to the point of clinical depression. Her depression reached the stage at which she had no choice but to accept a medical discharge from the force.

Planned Poisoning isn’t just cause after all

Employers reading this column in April, 2005 may have discovered grounds for optimism that the concept of just cause wasn't dead. That was when I originally wrote about the dismissal of a C.B.C. employee who sent tainted chocolates to a critic.
That case involved a C.B.C. reporter who had something of an ongoing battle with the head of a political lobby group. The reporter had broadcast a news report relating to the lobby group. As a result, the head of the lobby group spoke critically of the reporter in the community and filed a complaint to the C.B.C. about the news report.
The reporter understood he had been called a "toady" of the government and that his ability to function as a journalist had been publicly questioned. Initially, the reporter considered launching a defamation action against the head of the lobby group but was advised against such an action.
Instead, he formulated a plan to get back at his critic by anonymously sending him a box of chocolates on which he first planned to spit. As if that wasn't bad enough, the reporter also dumped the chocolates on his dirty kitchen floor and then rubbed some of them in thawed, raw chicken. The reporter re-packaged the chocolates and sent them off to his critic.

B.C. Acts to protect young and new workers

WorkSafeBC has announced changes (to Part 3 of this province's Occupational Health & Safety Regulations) pertaining to new and young workers. These changes are specifically intended to address the extraordinarily high injury rates amongst these categories of employees.
Statistics show that more than half of all work-related incidents occur during a young worker's first six months on the job. In 2005, 11 young workers died on the job, 151 were seriously injured, and more than 9,000 others were injured.
The injury rate of young workers is more than twice that of the overall worker population (and is on the rise). New workers, regardless of their age, carry five to seven times the risk of sustaining a workplace injury in their first month on the job. Contrary to the overall trend, injuries to young workers were up 31% between 2001 and 2005.
Any way you look at them, these are sobering figures. They add up to the indisputable conclusion that employers are not doing their job when it comes to protecting their young and new workers.

Giving notice of changes to employment terms

Employers frequently wish to impose changes on employees during the course of their employment. There has been something of a debate in the courts about how the employer must go about making those changes for them to be lawful and binding on the employee.
Imposing new terms of employment in an improper manner can amount to what is known as "constructive dismissal". A constructive dismissal is a termination of employment by conduct rather than by words. The employer doesn't expressly state that the employee has been terminated but its actions amount, in the eyes of the law, to a rejection of the terms of the employment contract.
Fundamental changes to the employment such as unilateral salary reductions, demotions, and indefinite (unpaid) layoffs are examples of significant changes that, if made improperly, create the risk of a claim of constructive dismissal. A constructively dismissed employee is entitled to monetary damages (often referred to as "pay in lieu of notice" because the common law entitlement is the provision of reasonable working notice of termination).

B.C. Ferries firings will test union’s mettle

Two announcements from opposing sides this week have set a tone for labour relations at B.C. Ferries that will endure for many months. First, management announced that the deck crew of the Queen of the North (the second officer, fourth officer, and quartermaster) have been fired. Then, inevitably, the B.C. Ferry and Marine Workers' Union announced that it will be grieving those dismissals.
The firings arose out of the sinking of the Queen of the North (after it crashed into Gil Island at Wright Sound off the B.C. coast). The Queen of the North struck the unmarked island, while traveling approximately 30 kilometres per hour, after failing to make a required course change. Ninety nine crew and passengers were rescued from the crippled ferry, but two remain missing and are now presumed drowned.

B.C. announces end of mandatory retirement

After months of anticipation, the B.C. government has introduced legislation which will render illegal employers’ policies imposing mandatory retirement at age 65.  This change, which is to become effective on January 1 of 2008, arguably ushers in a new era in employment law in this province.

The B.C. Human Rights Code has always prohibited discrimination on the basis of age.  However, that prohibition only applied to persons 19 years of age or older and less than 65 years of age.

Protecting clients from solicitation by former employees

The pendulum never seems to stop swinging in relation to the degree to which the law permits employers to restrict the activities of former employees. Just a few weeks ago, I reported on a rather stunning decision by B.C.’s Court of Appeal that certain professionals should be able to copy their employer’s client information for later use.
In that decision, the Court rejected the existence of an implied common law duty not to compete unfairly. The Court did, however, recognize that the law shields the employer’s goodwill and other property by providing protection against employees who take away confidential documents and trade secrets.

Recovering money from corporate executives

We live in an era of intense scrutiny of the payments made to corporate executives such as Conrad Black. Our fascination with the astronomical salaries and bonuses paid to these select few explains the attention Black’s trial has attracted in the news media.

This is just one of numerous recent instances in which the activities of executives have come under the microscope. In Black’s case, one of the allegations is that he inappropriately received tens of millions of dollars in the form of non-competition payments that should have gone to his employer.
With many millions of dollars dedicated to salaries and bonuses for corporate executives, more companies are now wondering how to recover payments which later seem to have been undeserved. The road to recovery of these monies is not likely to be a smooth one.


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