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Labour & employment law column by Robert Smithson

THE PASSING OF THREE OKANAGAN COMMUNITY BUILDERS

B.C.’s Okanagan Valley saw the passing of several significant business leaders and community builders last week. If things tend to happen in threes, this was a very big three, indeed.

Tom Foord was born in 1922 in tiny Instow, Saskatchewan. After a stint in the Canadian Air Force, he and his new wife settled in Vernon, B.C. in 1944.

He bought a local gas station in 1951 and, a couple of years later, decided to focus on selling tires. That decision led to the creation of Kal Tire (named after our local Kalamalka Lake).

CO-WORKERS DEMAND SLICE OF MEGA MILLIONS JACKPOT

Recent media reports told the story of a group of workers at a McDonald’s restaurant in Baltimore who struck it rich – to the tune of about $220 million – in a Mega Millions lottery. Not surprisingly, those reports also revealed that other employees are claiming a share of the massive jackpot.

GETTING STRESSED ABOUT WORKERS COMPENSATION AMENDMENTS

In 2011, the British Columbia government introduced the Workers Compensation Amendment Act, 2011 which (not surprisingly) will amend certain portions of that statute. Perhaps the aspect of Bill 14 which is – or should be – of most concern to employers is the broadening of WorkSafeBC benefits coverage for stress conditions arising in the workplace.

As of my last check, these amendments had not progressed beyond first reading in B.C.’s Legislative Assembly. With any luck, they’ll never reach second reading.

MY ADVICE TO UNIONS? THINK SMALLER

John Allemang wrote an article in the Globe and Mail this past weekend in which he examined a widespread loss of faith in trade unions. As he wrote, “Even union leaders are losing faith in the power of their unions.”

B.C.’s Ken Georgetti (President of the Canadian Labour Congress) was quoted as saying, “There used to be a time when we had great respect from the public, but we’ve lost that. There’s this notion that unions are just out for themselves and not for society.” Mark Ferguson, a branch president of CUPE was quoted as admitting, “The public hates unions right now.”

IS B.C.’s PUBLIC SECTOR BARGAINING MODEL BROKEN?

The teachers’ labour dispute in B.C. seems to be on a time out now that spring break is underway.  During this brief respite, it makes some sense to take a look at the current model of public sector collective bargaining.
 
I don’t think I’m alone in thinking that the public sector collective bargaining process is broken.  The challenge, of course, is to find ways to fix it.
 
To me, the teachers’ dispute demonstrates the worst failings of public sector collective bargaining, in which neither party is motivated to bargain.  Each has adopted an extreme position and seems determined to stick with it until the inevitable conclusion.
 
Because the employer is, effectively, the provincial government and because the government has the ultimate legislative authority up its sleeve, it knows it need not compromise.  And because the union knows the government will ultimately play that trump card, it has little motivation to compromise its own stance.
 

ACCOMMODATING DISABILITIES WHILE MANAGING ABSENTEEISM

I’ve said many times that dealing with employee disabilities, and the legal complexities they pose, is one of the most difficult challenges for the human resources professional.  Advancing the employer’s interests, while complying with Canada’s various and evolving human rights laws, can prove to be an overwhelming task.

JAILED B.C. EMPLOYER CAUGHT IN STATUTORY NET

For employer Arthur Moore, doing business as AM Environmental, 2012 has started off in an unpleasant way.  He has landed in jail for 60 days as a result of ignoring court orders arising from his unsafe operation of his demolition business.

Moore and his companies repeatedly exposed workers – some of them quite young and quite vulnerable – to asbestos.  In 2010, Moore was the subject of a court order preventing him from continuing to do business.

STEVE JOBS SKATED AGAINST THE FLOW

I went for a skate on Kelowna’s downtown, outdoor rink this weekend, enjoying a sunny, mild winter day in the Okanagan.  As I lapped the ice, two things became stuck in my mind.

The first was that there always seems to be a guy on the rink who insists on skating in the wrong direction, against the flow of skaters.  He will tend to be a confident skater, weaving in and out of the oncoming traffic, oblivious – or perhaps just insensitive – to the concern he causes to everyone else on the rink (Mr. Black Toque, you know who you are!).

WORKING NOTICE, MINUS THE WORK

Most employers likely believe that an employee given working notice of termination and who refuses to keep working has forfeited any legal claim to damages.  They likely would have been correct in that belief, until now.

British Columbia’s Court of Appeal has issued a judgment stating that – in some circumstances – an employee given working notice can refuse to work and will not lose the right to sue for wrongful dismissal.  This is a bit of a complicated matter that seems to tilt the playing field somewhat in employees’ favour.

WRITE YOUR OWN REFERENCE LETTER

When employers and their former employees are trying to settle disputed issues arising out of a termination of employment, there are many monetary factors to address.  Perhaps surprisingly, it isn’t always the money which is the stumbling block to reaching a settlement.

A very important aspect to any part of a settlement for a departing employee is receiving a reference letter.  Often, the employee will insist on getting a reference letter and the employer will be reluctant to provide it.

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