Employment Law

An employment contract is an agreement between an employer and employee regarding the employee’s term of employment. It can be implied, oral (for example a handshake agreement), or written. A standard employment contract contains information related to the employee’s job, such as their position, responsibilities, compensation, hours of work, vacation entitlements, workplace policies and so on.

A written contract of employment which clearly sets out the essential terms of the agreement between an employee and employer can curtail the possibility of a dispute between the parties later in the employment relationship. Employers will greatly benefit by having a clear and unambiguous termination clause to ensure that they do not violate the notice provisions of the BC Employment Standards Act, otherwise such a clause will be unenforceable, and the employer may be exposed to a greater notice or severance requirement at common law-reasonable notice. The costs of litigation will always outweigh the costs of having an employment contract prepared.

An employee handbook or employee manual gives employees a detailed overview of policies that are specific to your organization along with other key procedures, guidelines, and employee benefits.

An employee handbook sets clear expectations for your employees while also stating your legal obligations and defining employee rights. It can help protect your business against employee lawsuits and claims, such as wrongful termination, harassment, and discrimination. The handbook is also a crucial introduction to your business for new hires, providing insights for new hires to understand your mission and values.

Without effective policies and appropriate investigation processes in place, you risk significant liability and damage to the employees’ confidence in their employer. Workplaces are often the subject of intense scrutiny due to their flawed and/or negligent investigation techniques. 

A written contract of employment sets out the essential terms of the agreement. An employee handbook, when incorporated as part of the employment contract, is a contractually binding document.

An Employee Handbook should be tailored to the specific industry related needs of your company, but at minimum should outline all the core policies and procedures of a workplace, along with your company’s values and expectations. 

For example: Employers must implement procedures for responding to reports or incidents of bullying and harassment. The procedures must ensure a reasonable response to the report or incident and aim to fully address the incident and ensure that bullying and harassment is prevented or minimized in the future.

Under the common law in Canada, an employee must be terminated with reasonable notice, or pay in lieu of notice (i.e., severance), unless the employer has just cause for termination. A claim in wrongful dismissal arises when an employee has not received proper notice or pay in lieu of notice upon the termination of employment based on the legal requirements

The employee’s misconduct must give rise to a breakdown of the employment relationship. Some examples include, but are not limited to; dishonesty, insubordination, incompetence, theft (including time theft), breach of Employer’s rules and policies. Don’t assume that your employee’s conduct amounts to just cause, consult with a lawyer before terminating an employee for just cause to avoid possible litigation for wrongful dismal.

Severance pay is the compensation provided to an employee by their employer when the employee’s employment is terminated without cause (i.e., no fault of their own) and adequate notice of termination is not provided to the employee.

A “Release of Claims” is a legal document. By signing a Release, an employee typically gives up their right to make any claims against their employer following the termination of their employment. When executed correctly, the signed release may be relied upon by an employer as a defence for any future claims a former employee may attempt to bring against them. Seek legal advice before presenting an employee with a Release of Claims to avoid future litigation.

There are three important sources that will determine how much severance pay an employee will receive upon dismissal: the applicable employment standards legislation, the employment contract between the parties, and the common law. Seek legal advice in preparing an employee severance package to make sure that you are meeting your obligations and to avoid future litigation.

Discrimination is when a worker experiences harmful treatment at work that is connected to a part of their identity protected by the Human Rights Code. Sometimes these are called “protected characteristics” or “grounds of discrimination”. A full list can be found here. Employers have responsibilities under the Code to provide a discrimination free workplace.

A physical disability occurs when a physical or social setting makes it hard for a person with a physical condition to participate. A mental disability occurs when a physical or social setting makes it hard for a person with a mental condition or illness to participate. Both mental and physical disabilities are ‘protected characteristics’ under the BC Human Rights Code. 

Under human rights law, all employers are subject to a duty to accommodate employees with disabilities up to the point that the duty imposes an undue hardship on the employer. Accommodation means changing the rule or practice to incorporate alternative arrangements that eliminate the discriminatory barriers. Seek legal advice if you are unable to accommodate an employee on disability to avoid future discrimination claims and possible litigation.

The employer’s duty to accommodate requires the employer to take steps to inquire into and inform itself about the extent of the accommodation the employee needs. Therefore, the employer may, depending on the circumstances, require general information about the current medical condition, the prognosis for recovery, a functional assessment of current abilities and limitations; and the extent and nature of the employee’s disability and how to accommodate them. 

Employment law and human rights law have protections for employees who take time off work because of injuries or sickness. Generally speaking, an employer may dismiss an employee while on sick/medical leave, as long as it can be demonstrated that the disability or leave does not play a role in the dismissal. Seek legal advice before terminating an employee while on sick/medical leave to avoid future discrimination claims and litigation.

Not every unpleasant interaction or disrespectful behaviour in the workplace is bullying or harassment. WorkSafeBC defines bullying and harassment as: a) including any inappropriate conduct or comment by a person towards a worker that the person knew, or reasonably ought to have known would cause that worker to be humiliated or intimated, but excluding reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment.

A workplace investigation is an objective, independent, and systematic process of uncovering facts about a particular incident that occurred in the workplace. If the employer receives information which suggests an employee has engaged in serious misconduct, you may want to conduct an investigation so that you make a legal decision and mitigate your risk for litigation.

As an employer, you are legally obligated to protect the rights of your employees by providing a safe workplace environment. Employers must implement procedures for responding to reports or incidents of bullying and harassment. 

If the employer is unsure of its legal obligations or whether the conduct in question has met the legal definition of workplace harassment, the employer should retain the seek legal advice.

A flawed investigation (for example, neither objective nor fair) of alleged employee misconduct can in certain circumstances result in a significant damages award against an employer.

No, an employer is not required to involve a third party to investigate complaints of bullying or harassment. However, an employer must take all complaints of workplace bullying and harassment seriously. An employer should only undertake its own investigation, when the facts are easily ascertained, the matter is not complicated, and there are not complex underlying issues. If the employer has reason to believe that the investigation will not be fair and impartial, the employer should seek legal advice and may wish to arrange for a third party to investigate. 

If you have any questions regarding conducting workplace investigations, or if you are looking to hire an investigator, please contact our employment team here.

Employers may carry out electronic monitoring. However, the B.C. Privacy Commissioner has clearly recognized that employees have an expectation of privacy in the workplace. BC has privacy laws which, in some instances, restrict a company’s collection and use of personal information, which places roadblocks to unfettered e-monitoring usage.

Employee monitoring can include video and audio surveillance, software, and GPS tracking. Organizations may be tempted to use employee monitoring to provide safety coverage or for greater transparency. However, these tools can also unlawfully collect personal information about employees and ultimately increases risk. Seek legal advice before implementing employee monitoring to ensure compliance with relevant privacy legislation in Canada, and BC.

To collect, use or disclose personal information, private sector organizations in B.C. must follow the personal information and privacy rules set out in the Personal Information Protection Act (PIPA). Generally, these rules apply to all private sector organizations including corporations, partnerships, legal representatives, unincorporated associations, trade unions, trusts and not-for-profit organizations. Some specific exclusions apply.

A privacy policy is a set of internal standards, policies and procedures that ensure your organization collects, uses, discloses, stores, and destroys personal information appropriately. 

Under the law in BC, every employer must have a privacy policy. The policy must set out how the employer will meet its privacy obligations and must include a privacy complaint process that is accessible and easy to understand. The policy must be easily available to workers.

Contact our office to book a consultation for a privacy policy that will suite your business and comply with the relevant privacy law.