BC Workplace Blog

The Court of Appeal decision of Café La Foret ltd v. Cho, 2023 BCCA 354 is a reminder to all employers that even misconduct such as sexual harassment will not always justify cause for dismissal. Context plays a big role in determining whether an employer has cause for dismissal.

In Part 1: Duties of Loyalty, Good Faith, Fidelity and Confidence Owed by All Departing Employees, published on March 10, 2023, we highlighted the importance of understanding the duties of loyalty, good faith, fidelity, and confidence that all departing employees (no matter how junior they may be) owe to their former employer. When the departing employee is a senior employee (i.e., an officer of the employer, a member of top management or a key employee), that relationship gives rise to additional fiduciary duties which arise, even if they are not set out in a written employment agreement.

On May 11 2023, The Pay Transparency Act was passed in British Columbia with an aim to reduce gender-based pay disparities in the workplace. This Act places new obligations on employers to collect, disclose, and report pay information. In this post, we provide an overview of the key requirements employers should know in order to comply with the Act.

As previously announced by Labour Minister Harry Bains, the BC Government has raised its minimum wage from $15.65 to $16.75 per hour, effective June 1, 2023. The 6.9% increase reflects the BC government’s commitment to match the soaring inflation rate. In this post, we take a closer look at this increase and what it means for employers.

When an employee resigns to pursue a new employment opportunity with a new employer, or to start a new business venture of their own, the departing employee has to be careful not to do anything which may breach the terms and conditions of their employment agreement, or the duties of loyalty, good faith, fidelity and confidence which all departing employees owe to their former employer.

The Court of Appeal provided guidance recently on how CERB payments should be treated with respect to wrongful dismissal damages. In Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398 the Court of Appeal found that CERB payments do not concern employers in wrongful dismissal claims, as it is a benefit provided to workers to offset the impact of the COVID-19 from the authorities administering the income assistance program, not the employers. Therefore, taking into account policy considerations, the Court of Appeal deemed it would not be keep with the intention of Parliament to deduct CERB payments from wrongful dismissal damages.

Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.

In LaFleche v. NLFD Auto dba Prince George Ford (No. 2), 2022 BCHRT 88, the BC Human Rights Tribunal (the “Tribunal”) found that Ford discriminated against Mellissa LaFleche (“Ms. LaFleche”) on the grounds of sex and family status by dismissing her while she was on maternity leave. Ms. LaFleche had worked as a marketing manager for Ford for close to two years and, while she was on leave, Ford told her that she would not be returning to her managerial role – a role she had “built from scratch”. The Tribunal awarded Ms. LaFleche $12,000 for injury to dignity and $66,625 in lost wages and benefits.

The recent BC Supreme Court decision of Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881, is a reminder to terminated employees that they must take reasonable steps to find new employment. In this decision, the judge found that the terminated employee, Frances Okano, who had been with her employer for almost thirty-five years, did not take reasonable steps to secure a new job, and held that a reduction in the period of notice of three months was warranted for failing to mitigate.

The COVID-19 pandemic has changed the landscape of our the British Columbian economy and the workforce in a variety of ways. As we enter Phase 4 of BC’s Restart Plan can an employer mandate that their workers be vaccinated? In a recent decision BC Hydro and Power Authority v International Brotherhood of Electrical Workers, Local 258, 2022 CanLII 25764 (BC LA), it appears that may be the case. However, the purpose of the employer and whether their services are considered to be essential services, as well as the competing interests of the opposing parties, seems to have been key considerations taken into account by the arbitrator.

Is it appropriate to make surreptitious recordings in the workplace, so long as one party to the conversation consents? According to a recent BC Supreme Court decision, the answer is “No”. In Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112, the Court found that Mr. Shalagin’s conduct in surreptitiously recording his colleagues constitutes just cause given the effect of the relationship of trust. The employee knew his actions were wrong, if not legally, at least ethically.

“Layoff” is a commonly misunderstood term. A layoff occurs when an employee’s work is reduced by 50% or more of their previous hours but the employer expects to recall that employee in the future.
Prior to the COVID-19 pandemic, this procedure was often used only in seasonal or other cyclical industries, however, as the business community faced the impacts of COVID-19 and the provincial government broadened the applicable rules, it became more widely used. Now, as businesses have reopened only to face closures again, a refresher on the current rules is key.