The problem is that not all employees quit in a reliable fashion. Ideally, the employee will provide a letter of resignation and then, on the designated day, will cease to provide employment services. In that instance, there should be no difficulty concluding a voluntary resignation has occurred.

Many times, however, a so-called resignation is the result of a momentary, emotional blowup. The employee, in a rush of anger, declares, “That’s it, I’m out of here!” (or something similar) and storms out of the workplace. The employer, eager to take advantage of the situation, jumps on the opportunity to accept the resignation. Then the employee returns (after having cooled off) and declares he never had any actual intention of quitting.

This is when lawyers and judges are called upon to assist in determining the impact of what happened. This situation occurs frequently enough that a legal doctrine has developed to address the dilemma.

The B.C. Supreme Court recently dealt with this in the circumstance of an employee who left work after issues arose with her executive director. The employee removed all of her personal effects from the workplace and sent a letter to their Board of Directors alleging various shortcomings on the part of her boss.

At a meeting with the Board of Directors, the employee angrily confirmed her intention to depart and that she had no desire to be associated with the employer any longer. But, when an opportunity was later provided to the employee to confirm her resignation in writing, she refused to do so.

Instead, the employee claimed she had no intention of resigning, would be using up accrued sick time, and provided no indication of when she would return to her duties. The employer then communicated to her that it was accepting her resignation.

The employee took the predictable action, suing the employer for wrongful dismissal. The Court had to determine whether, in fact, the employee had voluntarily resigned from her employment.

The Court stated that the test is whether, in all the circumstances, a reasonable person would conclude by the employee’s statements that she had resigned. The evidence was that the Board of Directors had heard the employee unequivocally state her resignation. This, however, had come at a moment when the employee was extremely angry and upset so the Court went on to consider the surrounding circumstances.

The Court found that, despite her later attempt to cast her actions in another light, she had clearly indicated an intention to resign. She had refused to provide medical reasons for her continued absence, had requested the payout of accumulated overtime hours, and had requested a letter of reference. In addition, she had removed all her personal effects from the office.

So, while the employee repeatedly stated she had no intention to resign, her actions betrayed that position. In all, a reasonable person would have concluded that the employee had resigned. As such, her action for wrongful dismissal was dismissed.

Employers would do well to look at the issue using a two-stage analysis. First, has the employee used words which, when viewed objectively, indicate an intention to resign? The words don’t have to be as clear as “I quit” but should have a similar effect.

Second, have the employee’s subsequent actions indicated a subjective intention on her part to resign? If so, then initial words will have been confirmed and the two-stage analysis should be complete.

Watch out, however, for the employee who quickly recants, indicating an intention to remain in employment. That is often the case after the emotional blowup. In those circumstances, judges can be expected to conclude the incident was little more than a momentary, emotional lapse and will give the benefit of the doubt to the employee.

These items are intended for general informational purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in these items are subject to changes in the applicable law. You should always seek competent legal advice concerning any specific issues affecting you or your business.

Also read:

• Onerous Terms Not Necessarily Unconscionable
• When Terminating for Cause, Measure Twice and Cut Once
• Severance packages: – What’’s Fair?

The post When Is A Quit Not A Quit? appeared first on BC Jobs Blog.

The probation period can be viewed, if used correctly, as one long audition for a job. In revealing an individual’s true skills and attitude, it far surpasses any interviewing technique, new or old. There is no substitute for viewing an individual on the job in real work situations.

Legally, the impact of the probation period amounts to one thing only – a reduced standard of just cause for summary dismissal. It allows the employer, temporarily, to take advantage of a much more forgiving just cause threshold when deciding to summarily dismiss an employee. However, employers should be mindful that the legal onus is still on it to justify the summary dismissal of a probationary employee (just as it is in the case of a regular employee).

The common law provides employers with the ability to hire an employee on probation. This is only true, however, if certain steps are taken by the employer to properly establish the probation period. The probation period does not, contrary to what seems to be a widely held belief, arise unless it is properly brought into effect by the party who will later seek to obtain the benefit of its use.

It is especially important for employers to properly document and implement probation terms because of the way courts treat dismissed short-term employees. Court awards indicate that employees with a short period of service (up to about 2 years) tend to receive disproportionately high damages for wrongful dismissal. Awards in the range of 6-12 months of pay are no longer uncommon.

Employers often lean on the provisions of the B.C. Employment Standards Act when imposing initial probation periods. The Act impliedly supports such a concept, stating that no notice or severance pay is required for an employee who has worked less than three months.

But the Act is not the only legal authority when it comes to the obligation to provide working notice or severance pay. The common law of employment implies a term that, unless just cause exists, reasonable working notice of termination (or pay in lieu) must be provided. There is no implied exception to this rule for so-called probationary employees.

There is even less of a legal basis for presuming that a probationary period automatically arises later in the employment relationship (such as after a promotion or a transfer). In those circumstances, neither the common law nor the Act provide support for the existence of a probation period. And, an employer’s unilateral imposition of a probation period can even amount to a constructive dismissal.

Employers should also be aware that a probation “policy” will not necessarily bind the employee. If the policy is not made a binding element of the employment contract, it will be of little value. As a result, the employer and employee should agree, in writing, prior to the commencement of the employment, on the terms of a binding probationary period.

If the parties do agree on a probationary period, they should define what the standard of review will be (the most common standard is suitability). They should then go a step further and set out the various criteria on which the employee will be measured during the probation period.

Common law decisions indicate that employers must apply objective criteria in performing a good faith assessment of the probationary employee. And, the employer’s conclusions must, always, be reasonable in the circumstances.

The probation terms should clearly identify the length of the period and should provide the employer with an additional period of time, after the expiry of the probation, to review the employee’s performance and make a decision. This protects the employer against a finding that the employee has reverted to regular status and can no longer be dismissed using the lower standard.

Documentation should be kept, during the probation period, of the employee’s progress in relation to the agreed-upon criteria. The employer should be pro-active in counseling the employer on her shortcomings. Specific instructions should be provided on achieving the desired standard and the employer should provide its assistance. These are important elements in demonstrating the employee has been given a reasonable opportunity to meet the employer’s standards of conduct and performance.

An employer following all these steps will find itself in an excellent position to defend against wrongful dismissal claims by dismissed probationary employee. Those who choose to ignore these requirements will find themselves in court wondering why they didn’t do the job properly to begin with.

These items are intended for general informational purposes only and should not be construed or relied upon as legal advice. The legal issues addressed in these items are subject to changes in the applicable law. You should always seek competent legal advice concerning any specific issues affecting you or your business.

Read also:

• How to Ensure a Successful Probationary Period
• 5 Things Managers Need to Know
• Writing Interview Invitations & Samples

The post The Power of the Probationary Period appeared first on BC Jobs Blog.

In some instances, the law reveals that the severance formula can’t be enforced. For example, this happens when the formula provides for notice (or pay in lieu) at a level that does not meet the statutory minimums in the applicable employment standards legislation. It also happens when significant changes to the employment relationship have occurred since the contract was signed.

A third instance which can make an employment contract unenforceable is when the agreement itself can be said to be unconscionable. This happens when there has been an inequality of bargaining power. In other words, the stronger party has used its bargaining power to achieve an advantage over the other, so the resulting agreement which is substantially unfair to the weaker party.

But just because the terms of a contract may be onerous to one party or the other is not a basis for concluding the agreement is unconscionable. In fact, a recent B.C. Supreme Court decision tackled such a scenario.

John Finlan was hired by Ritchie Bros. Auctioneers as its Chief Information Officer in 1999. When they hired him, Ritchie Bros. provided Mr. Finlan with an employment contract containing a clause calling for notice of termination equivalent to that set out in BC’s Employment Standards Act.

Mr. Finlan was surprised by the requirement to sign a contract, but was given time to review the contract at home before signing it. Ultimately, he provided the signed contract to Ritchie Bros. before starting employment with them.

Roughly five years later, Ritchie Bros. terminated Mr. Finlan’s employment. He sued for wrongful dismissal, claiming pay in lieu of notice according to the common law of employment. The basis for his claim was his view that the severance clause in the employment contract was unconscionable and, therefore, unenforceable.

The Court then restated the elements which must be present in order to find that a contractual term is unconscionable:

• there must be an inequality of bargaining power between the parties
• the stronger party must have used its bargaining advantage; and
• the result must be an agreement which is substantially unfair to the weaker party.

It is crucial to remember that these three elements of unconscionable agreements are conjunctive – they must all exist for the agreement to be unconscionable.

The Court determined the agreement between Mr. Finlan and Ritchie Bros. was not unconscionable. It noted he was an experienced IT manager familiar with the industry, he was not in a vulnerable position when he accepted employment: any pressure he might have felt to sign the contract didn’t originate with Ritchie Bros., and they did not in any way coerce him to signing the contract.

Notably, the Court stated that it is not the employer’s obligation to point out the strengths and weaknesses of each contractual term in the contract of employment. It is sufficient if the employee has time to review the contract on his own, in the absence of any influence from the prospective employer, and has the opportunity to seek out advice about the implications of the contract.

The Court concluded that the terms of the contract were clear and unambiguous, Mr. Finlan signed the contract with full knowledge of what was being offered, and he did so without any form of pressure from Ritchie Bros. As a result, Mr. Finlan’s claim for damages under the common law was dismissed.

However, this case brings up an interesting side-note. Notwithstanding the clause in Mr. Finlan’s contract calling for only five weeks pay in lieu of notice, Ritchie Bros. actually offered (and paid) Mr. Finlan six months’ salary upon termination of his employment.

Even this gratuitous payment wasn’t enough to dissuade Mr. Finlan from suing (and claiming Ritchie Bros. had treated him with bad faith!). It just goes to show that, sometimes, even treating people with civility, courteousness and professionalism isn’t enough.

Read also:

• Managing The Risk of Constructive Dismissal
• When is a Quit Not a Quit?
• Severance packages: – What’’s Fair?

The post Onerous Terms Not Necessarily Unconscionable appeared first on BC Jobs Blog.

How much notice do employees legally need before you can lay them off? Although many people think two weeks is the legal standard, Canadian common law for employment outlines termination notice in detail. If you don’t want to give employees working notice, you need to pay them the equivalent wages – also known as severance pay or pay in lieu of notice.

When you give an employee notice of a lay off or termination, this provides time for the employee to look for a new job. How much notice you need to give largely depends on four factors: the employee’s age; length of service; type of position; and the availability of similar employment.

Arguably, the most important factor is length of service. But figuring out length of service can be more difficult that it might seem. It’s particularly tricky when the employee worked for you for two or more discrete periods. In those instances, the employee often demands working notice (or severance pay) based on the combined length of the periods of service.

The employer will often oppose that method of calculation, insisting that only the most recent service should be counted. The courts are often asked to resolve this stalemate.

This same debate also comes up when the employment has been continuous but at some point the business was sold to a new owner. The employee will demand working notice (or severance pay) based on the entire period of service, not just the portion while serving the successor owner.

Of course, the successor owner will only want to provide notice or pay based on the period of time that it has owned the company. However, the courts usually offer little sympathy for that point of view. In fact, a recent BC Supreme Court case covered this sort of dispute.

Judy Perkins was a dental assistant who had worked for a dentist for approximately 23 years. At that point the dental practice was sold to a new owner, Donald Shuen. Some elements of Perkins’ employment changed under the new owner, but for the most part she continued to perform the same duties.

Six months later, Shuen terminated Perkins’ employment. Perkins sued for wrongful dismissal, seeking to use her entire period of employment as a basis for determining her entitlement to pay in lieu of notice.

Shuen took the position that the business was insolvent when he took it over and that the prior dentist had expressly terminated her employment when the practice was sold. Shuen argued that Perkins’ notice entitlement should be based on only six months of service.

The BC Supreme Court rejected Shuen’s view of the sequence of events. The Court cited the implied understanding that employees are given credit for years of past service when a business is purchased. This implied understanding applies unless the successor owner expressly negates that implied term.

Notably, there was no evidence the former owner had ever expressly terminated Perkins’ employment. When asked by Perkins whether her employment was to be terminated, the prior owner indicated that technically she would be terminated and then rehired but that, practically, nothing would change.

The Court had little trouble concluding that Perkins should be given credit for her entire period of service, including the 23 years spent with the former employer. In doing so, it relied heavily on the implied term that employees continuing in the service of a purchased business will be given credit for past years of service.

Although not cited in that decision, the Employment Standards Act also affects these situations. The Act states that if all or part of a business or its assets is sold, the employment of employees of the business is deemed to be continuous and uninterrupted by the sale.

This further strengthens the conclusion that employees continuing in employment with a purchaser of a business are entitled to credit for all their years of service. It may also serve to negate any contractual terms to the contrary.

The combination of the common law rule (presuming that employees are to be given credit for past service) and the statutory rule (deeming the employment to be continuous) means the successor employer has a difficult challenge in avoiding liability for the employees’ entire period of service.

So how can you, as a successor employer, protect yourself against this liability? The only sure way is to negotiate protective terms into the agreement to purchase the business. This can be achieved by obtaining a binding indemnification from the vendor against such costs.

Better yet, you can negotiate to temporarily retain part of the purchase price to fund the costs of terminating employees soon after the purchase occurs. Either way, it’s an issue best addressed at the time the purchase of the business is negotiated.

The post Length of Tenure Influences Notice Entitlement appeared first on BC Jobs Blog.

Effective January 1, 2015, Citizenship and Immigration Canada (CIC) introduced a new skilled immigrant intake system—Express Entry (EE). Originally called Expression of Interest, it is modelled after New Zealand’s immigration system.

Though little has changed regarding the categories and criteria, what has changed is the application assessment and management system. As such, Canada still chooses its skilled immigrants on the basis their economic viability assessed by four main factors: language, education, work experience and skill transferability. Potential immigrants who qualify in this stream can apply as: Federal Skilled Worker, Federal Skilled Trades, Canadian Experience Class and Provincial Nominees.

The Process

To be considered for Express Entry, a potential immigrant submits an online profile in the EE pool with their personal qualifications for ranking. Based on the calculations, the profile is ranked against others in the EE pool to a maximum of 1200 points.
A candidate can obtain points in the following areas: human capital/spousal factors (500), skill transferability (100) and job offer (600). CIC will then issue Invitations to Apply (ITA) to candidates drawn from the active profile pool. Candidates who receive an ITA have 60 days to complete the rest of their CIC application. Only those who have an ITA will be able to apply for permanent residency. Candidate EE profiles remain valid in the pool until they are selected or for up to one year.

Canadian Employers

Another feature of Express Entry is candidate job matching through the Canada Job Bank. Canadian employers who cannot find suitable Canadians for their jobs will be able to hire and support a foreign national to immigrate to Canada. The EE profile also enables the applicant to search for Canadian jobs while being visible to employers looking in the Job Bank for would-be job seekers. This employment module is planned for launch later in the spring of 2015.

Existing Work Permit Holders

Under the Express Entry system, only those with ITA’s can apply as skilled immigrants. Those foreign workers who received work permits through various international agreements such as NAFTA or a working holiday program will not qualify unless they have a validated permanent job offer. These foreign workers will require employer assistance in the form of the Provincial Nomination or Labour Market Impact Assessment (LMIA) to obtain the 600 job offer points for their eligibility profile. These are vetted and approved through a third party government agency, and they both have different requirements to meet. In the case of the LMIA, the employer must conduct a full scale (in Canada) recruitment for the position.

ITA Draws

The ITA pool will be constantly refreshed and continually updated with new applicant entries and hopefully the policy makers will be looking at practical considerations from different angles. CIC announced its first ITA picks for Express Entry this past weekend; those with 886 points received the invitation to move forward on their permanent residency application to Canada.

As with any new government initiative, the real life scenarios and practicalities will take time to unfold. There still isn’t a lot of information available. However, it will be tougher to get a high EE score without a validated job offer. Perhaps the future draws will be adjusted to account for those who currently possess different kinds of valid temporary work permits. For now, Canadian employers will need to assist their existing foreign workers to immigrate with a LMIA or Provincial Nominee application. (ultracold.fuw.edu.pl)

Express Entry isn’t the fastest way to permanent immigration for everyone, just those who have an Invitation to Apply.

Amelia Chan is the founder of Higher Options Consulting, a boutique HR and immigration firm. Amelia is a CHRP and RCIC who uses her HR and entrepreneurial experience to create practical operational solutions. She is a regular contributor to the HRMA publication, PeopleTalk.

BCjobs.ca and TheJobCentre.ca can help you with your job posting needs. Every job posted includes a customized letter confirming your posting, offering proof of your advertisement to satisfy current LMIA requirements.

Read also:

• Hiring a Foreign Worker or non-Canadian
• Recruiting Non-Traditional Employees

The post Canada’s Express Entry appeared first on BC Jobs Blog.

We are joining the ranks of Quebec, Ontario, Saskatchewan for example, that already have language about bullying in their legislation.

What does this legislation mean for employers? Well, it means that they must create policies that speak to what bullying and harassment are and they must also educate all employees at all levels of their organization, on how to deal with bullying in the workplace.

Supervisors and managers will need to know how to recognize if bullying is happening in the workplace and employees will need to know what avenues are open to them in terms of making a complaint and what the process will be once a complaint has been made.

As an employer, you will want to be sure that

• Complaints are taken seriously and appropriate investigations are done when needed.
• You will want to ensure that those responsible for handling the complaints are trained on how to deal with an investigation.
• You may also want to consider utilizing the services of an external investigator – and in the case of a serious complaint, or one in which there is more than one complainant – it is recommended that you consider an external source.
• You will want to be sure that documentation is in order to support whatever decisions are made as a result of your complaints or investigations.
• You will want to ensure that you communicate what the outcomes are to both the complainant and the accused party.

Within your policies, you will want to be clear about the definition of bullying and as a general guideline, what I recommend is that you look at how harassment is defined in your human rights code.

In Canada, of those provinces that previously passed legislation, bullying has been described as:

the act of intentionally causing harm to others, through verbal harassment, physical assault or other more subtle methods of coercion such as manipulation, including ignoring and isolating the person.

Sometimes bullying is referred to as “psychological harassment” or “personal harassment.”

Do you think that bullying is really a problem in the workplace, or are people just whining about nothing and should they go along to get along?

To respond to this question, we look a look at the Province of Quebec since they were one of the first to pass this legislation. It was learned that one year following the coming into force of the new law, the Labour Standards Commission reported that it had received 2,500 complaints of psychological harassment, and that less than 1 per cent of these complaints were considered frivolous.

Bullying is, according to this information, alive and well in the workplace and there is a definite need for the new legislation here in B.C. We are now the fourth province to make an attempt at addressing this problem.

You may want to learn more about how to address bullying in your workplace as well. Be proactive if you are not yet in a position where legislation is passed. Create healthy work environments and reap the benefits of doing so. No, bullying is not new to the work place; it’s very much alive and well.

Hopefully, this legislation will bring us one step closer to realizing that successful businesses are those who work hard to eliminate bullying and harassment and have the policies and practices in place to do so as well as taking the actions necessary to provide safe work places.

The post Bill 14 is Here appeared first on BC Jobs Blog.

Even with the best of intentions, we can make errors in workplace investigations that are very costly not only in directly visible ways, but also through indirect costs such as organizational reputation, employee morale and of course, turnover.

When a complaint of wrong doing comes into an employer; let’s use harassment or workplace theft as an example, the complaint deserves an investigation. To what extent that investigation goes is very dependent upon the type of complaint. Consider the severity and impropriety of the act, the circumstances of each situation and whether the behaviour is prohibited under Canadian Human Rights or Provincial Human Rights as may be the case.

Fail to take any and all complaints seriously at your own peril. The importance of taking the time to investigate complaints cannot be overstated. And the time you take to start and complete them must be factored in as well.

Of course, the nature of the complaint will very much dictate the depth of the investigation. The investigation could be something as simple as checking time cards or door swipes to confirm an employee reported for duty on time. Follow up with the department manager and validate what information you’ve found. If indeed the complaint has been validated through your cursory check, we move further if necessary.

Talk with the ‘tardy’ employee and let him know about the situation and how it might be improved upon for if there is something like an accommodation going on.

Remember your co-workers, subordinates and other managers will be watching how you respond because who knows – it could be them that have questions in the future – you will be viewed as someone who is serious about creating healthy workplace because you really are about your process – Employees should feel safe in coming to you and they will if they believe you when you talk with them and know that you will protect the complaint as much as possible.

It sounds all formal and disconcerting when we mention workplace investigations, but if you have a healthy work place they should be few and far between. If people fear coming to you or feel there is no use because nothing will be done anyway – well then I dare say it’s not where you want to be. Healthy relationships require trust.

People see what’s going on at work – they see how the employer supports others – whether that support is on side with manager or with the employee. And there will be time when the employee has to admit that things could have been different and may have to change something as a result of an investigation; however we are all human and it proven time and time again, that do make poor judgement can be forgiven – it’s the lies and attitudes that cannot.

An investigation managed effectively can restore a relationship and boundaries can be established that everyone is good with. This might be a chance to restore a relationship if both parties are in sincere in doing so. So many times, conflicts come about and we discover at the root of the conflict that may well as the cause of investigations are easily resolved and it’s having the faith to do that that truly illustrates a good, healthy environment.

To be honest, not all things end well.

In serious allegations that are borne out, there may be dismissals (or more than one), there may be discipline on files, there may be people that quit the organization and move on – valuable people. These are part of life but you cannot fear them because it may impact your investigations.

Every organization, large or small, should have policies in place that speak to how employee complaints are addressed. Within those policies should be a statement relating to an investigation procedure.

There are processes that investigations must follow and someone taking on the responsibility of managing an investigation without adequate training can very quickly turn a simple issue into a major – and costly – concern. I recently took part in an investigations workshop and the information provided confirmed this fact.

An Investigation Gone Wrong

An employee receives his performance review and he is not happy with it. It’s more than that, he says he is being harassed and that some of the content in the review was not ever spoken in person.

He takes the complaint to human resources, who then proceeds to follow the steps in the procedures manual, goes immediately to the supervisor.

Well, what do you think happened then?

The supervisor hit the roof and told the human resources department that of course, it was completely unfounded.

Now our complainant is furious – he feels he came to the human resources department to complaint ‘about the supervisor being the harasser’ and she goes directly to him.

O.K., so what’s the next step in the procedures? (https://shlohmo.com/)  Try ADR (Alternative Dispute Resolution). How do you think that went?

Needless to say, the complaint that should have been a fairly easy one to manage, became long and complex and went on for a couple of years and more people got involved as the emotions ran high and some of the anger and feelings of betrayal stayed between the two parties.

This complaint that could have conceivably been handled through one or two conversations, if handled appropriately, went on for over 3 years. 3 years of supervisory time, employee time, production time (several more people ended up involved as it dragged along), human resource personnel time, etc.etc.

So, while there are procedures in place; we must also understand how to manage the complaint. Going directly to the supervisor in this case, ended up being the last place the investigation should have started.

If you have a fairly complex investigation, one that has serious allegations, you may wish to look at an external investigator. Will it cost you money? Absolutely! But if you don’t manage it effectively, it was cost you far more – and that’s a guarantee.

Reputations are damaged (for individuals and businesses)

If not handled expediently and with the time and energy it deserves; potential law suits could loom overhead.

Employee trust is weakened (which results in less productivity and attitudinal concerns).

And so it goes.

By all means, most of your complaints can and should be managed internally. This is because the majority of them should not be extremely serious in nature.

However; if you have an investigation that requires some added time that you cannot give it; or if it is serious enough that there could conceivably be ‘external charges’ brought against the company – leave it to someone that investigates for a living – take it outside.

Don’t just take my word for it – check out any number of employment law sites and have a peek.

As a final note, if your organization insists on doing your own investigations, then get the required training to make sure you do them well. What appears to be a large cost is very little when compared to an investigation gone wrong.

The post Handle Workplace Investigations with Care appeared first on BC Jobs Blog.

Cowed by lawyers’ warnings, many employers will shy away from the structural changes needed for business survival.  My own view is that business changes can be effectively managed to limit the risk of legal liability.

When an employer unilaterally imposes substantive changes to an employment contract, the employee sometimes has the right to treat those changes as a termination.  Such a “constructive” dismissal is every bit as real as if the employee were actually informed of the termination, and gives rise to the same right to claim damages in lieu of notice.

Not every imposed change, however, will amount to a constructive dismissal.  The change must be one which is substantial and which goes to the heart of the employment relationship such as a transfer, demotion, substantial reduction in wages, or unpaid layoff.

These are precisely the categories of changes which employers will need to impose at a time like this.  With shrinking revenues, fewer employees to perform the necessary range of tasks, and the closing of branch offices the remaining employees will find themselves in a different situation.

If the changes imposed amount, at law, to a constructive dismissal then the employee is entitled to walk away from the employment and claim damages.  In practice, however, numerous factors minimize the likelihood of this occurring.

First, the onus is on the employee to adopt the stance that his or her employment has been constructively terminated.  This is a high-stakes decision which can be very difficult to make because there is no list of the specific criteria by which a constructive dismissal may be identified or measured.

The only way for the employee to find out if a constructive dismissal has occurred is to resign from the employment and commence an action for damages.  The outcome of this roll of the dice will be determined when a judge rules on the situation.

This takes time and money and, in the meantime, the employee will be deprived of a stream of income.  This may be the most powerful influence limiting the likelihood of constructive dismissal claims – people just don’t walk away, lightly, from their source of income.

Second, there is the legal premise that the innocent victim of a contractual breach must take steps to mitigate her losses.  So, individuals claiming damages for wrongful dismissal must make reasonable efforts to find replacement employment.

If they do not do so, their failure to mitigate their losses will negatively impact their entitlement to pay in lieu of notice.  Sometimes, the failure to act reasonably in mitigating can entirely cancel out the legal remedy.

The duty to mitigate sometimes means accepting another job with the former employer.  An individual may even be required to relocate in order to retain employment with the same employer.

The employee’s duty to mitigate allows the court to look at the reasonableness of the employee’s response to the employer’s imposition of changes.  A court could decide that an employee was constructively dismissed but that walking away from the altered position amounted to a failure to mitigate.

Third, the employer always has the ability to limit its liability using its ultimate get-out-of-jail-free card, reasonable working notice.  This is useful when the employer has the luxury of time to implement the planned changes.

The rules about providing working notice of a fundamental change to the terms of employment are, however, not exactly stable.  Courts seem to sway back and forth on whether reasonable working notice of a fundamental change will eliminate the risk of liability for constructive dismissal.

The present wisdom, from the Ontario Court of Appeal, seems to be that the employer should provide the employee with reasonable working notice of termination and an offer of re-employment (under the new terms) effective upon the expiry of the working notice period.

Rather than shying away from necessary business changes, I suggest to employers that they approach the changes, and the affected employees, with a view towards managing the risk of constructive dismissal claims.

The employer should identify the necessary changes and determine specifically which employees would be affected (and in what way).  The employer can approach the employees to obtain their reaction to the necessary changes – there’s no legal harm in asking.

If there is significant “push back” from an employee, the employer can obtain legal advice about whether the planned changes are substantial enough to create a risk of a constructive dismissal.  The lawyer can further advise on the degree to which the employee will be risking a finding that he or she has failed to mitigate by rejecting the revised terms of employment.

If all else fails, the employer can play the reasonable working notice card to minimize its liability.  In this way, the risk of constructive dismissal claims can be managed effectively, if not totally eliminated.

Related to Managing the Risk of Constructive Dismissal

• To Sue or Not to Sue?
• When is a Quit Not a Quit?
• Severance packages: – What’’s Fair?

The post Managing The Risk of Constructive Dismissal appeared first on BC Jobs Blog.

But department managers typically will not be fully trained in employment law. So, are there some basic concepts they can learn which will give their company the prospect of avoiding legal complaints?

In my experience, untrained managers commonly trip over certain issues and, in doing do, create liability for their employer. I’ve observed at least five obvious examples.

First, managers who are involved in hiring need to have a basic understanding of human rights law and discrimination in particular. Knowing what questions to ask during the hiring process, and what questions not to ask, is an important skill.

Because of the recent focus on human rights and personal information (or privacy) law, my sense is that managers are afraid to ask any questions relating to age, gender, religious background, etc. Personally, I think we’ve all gotten a little too worried about crossing the line into personal information, though discretion is definitely a good starting point.

The legal fact is that there are no questions which are, in and of themselves, totally inappropriate to ask during the hiring process. But, when they relate to a candidate’s personal characteristics, it is critical that they are reasonably related to the job for which the employer is hiring.

Second, it is critical for hiring managers to understand the legalities of implementing employment agreements (or other documents in which terms of employment are set out). The key thing to know is that the employer has a golden opportunity to impose its desired range of terms, including company policies, before the employment commences.

Once the newly hired employee has started working, it is too late to simply stick an employment contract under his or her nose and say, “Please sign this”. That is because, by that point in time, the employee typically won’t be receiving of value anything in exchange for signing.

So, all hiring managers should be keenly aware that the time to get the candidate to sign an employment agreement or related documents is before he or she commences employment. One day late is, well, too late.

Third, managers who will be involved in weeding out new hires who don’t cut the mustard should know there is no such thing as an implied or automatic probation period. A probation period must be properly described and implemented and an employment agreement is the place to do so.

It is a very common misunderstanding that, in B.C. at least, employers terminating employees during the first three months of employment are completely protected by our Employment Standards Act. They aren’t. The common law of employment – which is the basis of court claims for wrongful dismissal – compels the employer to expressly impose the probation period.

The probation period is, in my view, an employer’s best opportunity to view new employees on the job and, if they aren’t cutting it, make a risk-free move to get rid of them. But, if the probation period is not properly implemented – again, the employment agreement is the place to do so – a civil action for damages may not be far behind.

Fourth, managers who are involved in imposing discipline need to know whether the employee’s terms of employment permit the imposition of measures such as unpaid suspensions. Many managers incorrectly presume that such measures are part of the employer’s implied managerial authority.

But, like the probation period, these entitlements don’t necessarily come into being automatically. Depending upon the circumstances of the employment relationship, imposing severe disciplinary measures such as an unpaid suspension or a demotion may be viewed as a constructive dismissal.

If the suspended or demoted employee decides not to accept the discipline, he or she may well choose to walk away and sue for damages for constructive dismissal. Again, the authority to take these kinds of disciplinary steps arises from a well-drafted, properly-implemented employment agreement.

Fifth, managers making firing decisions need to understand some basic – and critical – concepts. There are many, and entire courses are taught on this topic alone, but a few stand out in my mind.

A source of much confusion is the question of whether employers have an inherent legal right to lay employees off (without pay) temporarily. Put simply, they don’t.

The distinction between firing and quitting also seems to confound many managers. In particular, they should know that an employee who won’t accept substantial changes to his or her employment can’t properly be viewed as having quit – that scenario is called constructive dismissal.

The king of all misconceptions among managers is that the applicable employment standards legislation is the only source of an employee’s entitlement to working notice (or pay in lieu). Unless the employer has provided the employee with reasonable notice (or pay in lieu) pursuant to the greater common law requirements (and, ideally, has obtained a signed release), it may expect to be sued.

Understanding these basic legal issues can go a long way towards keeping a company out of court. Employers would be well-advised to give their managers some exposure to at least these minimal concepts.

Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca. This subject matter is provided for general informational purposes only and is not intended as legal advice.

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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. (northeastohiogastro.com)

The reference letter is, in some ways, a comparatively small aspect of such settlements. But it has large emotional and practical implications for the departing employee and can be the point on which a prospective settlement lives or dies.

For the employee, departing from a job without a reference letter leaves what I call a “black hole” in his or her employment history. This can have a crippling effect on the individual’s job search (especially when the employment was quite lengthy).

The individual will ask himself or herself, “How do I explain to potential employers that I don’t have a reference letter?” and “Am I supposed to pretend that job never happened?”.

On the former employer’s part, it may be reluctant to provide a reference letter to an employee it chose to terminate. This reluctance can be based on an exaggerated fear of the legal implications of issuing a complimentary letter to a less-than-satisfactory former employee.

The employer will ask, “How do I find something positive to say about this person?” and “What happens if another employer relies on my letter but things turn out badly?”.

Despite the sometimes conflicting desires of employer and departing employee, the matter can usually be resolved. I cannot recall a single instance in my own career in which we could not ultimately get over this hurdle. But, it hasn’t always been easy.

In my view (other than in truly exceptional instances) the employer should, and can, provide a reference letter to a departing employee. Whether a purely objective, “just the facts”, sort of letter or one containing subjective assessments of the employee’s performance and conduct, a letter can almost always be assembled.

But, arriving at mutually-acceptable wording can be a substantial challenge. That is why I routinely recommend (regardless of whether I am representing the employer or the employee) that the departing employee prepare the first draft of the reference letter.

This may sound counter-intuitive. After all, it’s the employer’s task to write the reference letter, right?

I’ve seen results over a lengthy period of time consistently proving the effectiveness of this approach. My observation has been that employees tend not to over-inflate their accomplishments and that employers are relieved by how restrained the employee has been.

My experience has been that when the employer writes the first draft, the employee tends to be dissatisfied with the result (perhaps because he or she reads an unintended ill will into the employer’s chosen words). It tends to lead to a lot of “Why did you say that?”, “Why didn’t you mention this?”, and “I don’t like the tone of that comment” sorts of reactions.

Rather than the employer trying to guess what the employee will want to see in the letter, and wrestling with its own reluctance to construct some positive commentary, the employee can get right to the heart of the matter by writing the first draft. Once that first version has been established, my experience has been that only minor tinkering tends to be required to get it in a condition that is acceptable to both parties.

In this way, a potentially emotional and explosive aspect of settlement discussions can be dealt with relatively smoothly and easily.

Of course, employers must ensure that what they are writing about an employee is factually accurate. The letter won’t ever provide a complete record of the employment relationship but that’s never been the purpose of the reference letter.

Related to Write Your Own Reference Letter:

• To Sue or Not to Sue?
• When Terminating for Cause, Measure Twice and Cut Once
• Length of Tenure Influences Notice Entitlement

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