Fasken updates

Alberta workers' compensation: a refocus
Fasken
  • Employment & Benefits
  • Canada
  • January 17 2018

In 2016 the Alberta government commissioned an evaluation of the entire workers' compensation system. In July 2017 the Alberta Workers' Compensation Board review panel issued a report which found that employers and workers overwhelmingly wanted the system to continue. However, significant problems exist and, based on these findings, the panel issued a list of recommendations. While the extent to which the government adopts these recommendations remains to be seen, further debate is likely.

Dismissals for incompetence: are we moving backward or forward?
Fasken
  • Employment & Benefits
  • Canada
  • January 10 2018

Employers in Quebec that wish to dismiss employees for incompetence may now need to accomplish an additional step before doing so, following the Quebec Superior Court's recent confirmation of an arbitration decision in which an additional criterion was added to those previously established by the Court of Appeal. According to the superior court, employers must also verify whether another more suitable role is available for an employee before proceeding with termination.

Government enhances maternity leave benefits and protection against workplace harassment
Fasken
  • Employment & Benefits
  • Canada
  • December 20 2017

Changes to the employment insurance programme relating to parental, maternity and caregiving benefits came into effect on December 3 2017. The employment insurance programme provides temporary income support to partially replace lost employment income for individuals who are off work for various reasons. The government also recently announced legislation to strengthen existing laws on the prevention of harassment and violence in federally regulated workplaces.

Win for employers: Supreme Court rejects union's request for right to consultation in accommodation process
Fasken
  • Employment & Benefits
  • Canada
  • December 06 2017

The Supreme Court recently dismissed an application from the Telecommunications Workers' Union for leave to appeal the decision that unions have no independent legal right, separate and apart from their collective agreement rights, to be involved in every unionised employee's accommodation request. The decision is a victory for employers, employee privacy and the accommodation process.

Avoiding liability risks on termination for sexual harassment
Fasken
  • Employment & Benefits
  • Canada
  • November 29 2017

The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision and employers may find themselves having to make tough decisions on tight timelines. The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. This is a lesson that can be drawn from a recent Alberta Court of Queen's Bench case.

Erosion of employers' managerial rights
Fasken
  • Employment & Benefits
  • Canada
  • November 22 2017

An arbitrator and the Quebec Superior Court recently challenged the well-established principle in labour relations that an employer retains managerial rights in the absence of limiting provisions in a collective agreement. The arbitrator and the court found that the employer had violated the collective agreement because it contained no clear provision that allowed it to act as it did. Therefore, the question remains: what is happening to managerial rights and what measures can employers take to protect them?

Once bitten, twice shy: greater scrutiny ahead for employees misclassified as contractors
Fasken
  • Employment & Benefits
  • Canada
  • November 15 2017

Ontario has announced that it will be cracking down on employers that misclassify workers as independent contractors as part of its Bill 148: Fair Workplaces, Better Jobs Act 2017. The bill will place the burden on employers to prove that workers are not employees for the purposes of the Employment Standards Act, reflecting a growing concern among legislators across Canada that workers and employers are operating outside of the traditional employer-employee framework.

British Columbia Labour Relations Board rules on secondary picketing at non-striking facility
Fasken
  • Employment & Benefits
  • Canada
  • November 08 2017

In British Columbia secondary picketing is unlawful unless the striking union can obtain a declaration that the secondary business or location has allied itself with the struck employer. Suppliers and other affected businesses can arrange their affairs to work around strikes and lockouts without being declared an ally – so-called 'self-help' is permitted by such third parties. A recent British Columbia Labour Relations Board decision has analysed self-help in a new way, making it more difficult to avoid secondary pickets.

Walking the line between termination and resignation
Fasken
  • Employment & Benefits
  • Canada
  • October 25 2017

For Canadian employers, navigating the distinction between resignation and termination can be complicated. If an employee resigns, there is no entitlement to severance. If an employee is terminated without cause, the employer is liable for termination pay (and possibly severance pay in Ontario and the federal jurisdiction). A recent Alberta ruling highlights that mistakes in distinguishing between termination and resignation can be costly.

Advertising before recruiting: stringent requirements when hiring foreign workers
Fasken
  • Employment & Benefits
  • Canada
  • October 18 2017

Changes to the way that employers must advertise their job openings and assess job applications have come into effect in Canada. Employers advertising high-wage roles to foreign workers must conduct three different recruitment activities and advertise the vacant role on the government's Job Bank and two other platforms before submitting a labour market impact assessment to show that foreign workers are needed for the job.

Importance of respecting confidentiality clauses in termination agreements
Fasken
  • Employment & Benefits
  • Canada
  • October 11 2017

The question of what happens when a party does not strictly respect the confidentiality clause in a termination agreement was recently submitted to an arbitrator, after an employer confirmed that he would not re-hire a former employee when providing references to her new employer. The decision demonstrates that employers should either strictly adhere to the terms of a termination agreement or simply refuse to give references to future employers.

Double recovery: can employees receive severance plus pension or disability benefits on termination?
Fasken
  • Employment & Benefits
  • Canada
  • October 04 2017

Employees in Canada who are entitled to receive reasonable notice of termination or pay in lieu of notice may also be entitled to receive pension or sick leave payments during the notice period, depending on the circumstances. As a general rule, such employees should receive both pension pay and pay in lieu of notice, while disability payments should reduce the pay in lieu of notice owed by an employer. However, exceptions can apply.

Simply stating document is privileged does not mean that it is
Fasken
  • Employment & Benefits
  • Canada
  • September 27 2017

The Alberta Court of Appeal has issued a reminder to employers that simply declaring that an investigation has begun and throwing a privilege 'blanket' over all materials is not sufficient to protect them from disclosure. Although documents are frequently covered by both solicitor-client and litigation privilege, the court held that defendants must distinguish which form of privilege applies to each document independently.

When working notice just does not work
Fasken
  • Employment & Benefits
  • Canada
  • September 20 2017

For employers shutting down operations, providing working notice is often the best way to reduce severance amounts owed. However, an Ontario court recently confirmed that working notice is appropriate only for employees capable of working during the notice period. Further, the court stated that employers are not entitled to accept a doctor's note when offered, then question its validity at trial.

Genetic information is off limits
Fasken
  • Employment & Benefits
  • Canada
  • September 13 2017

Medical examinations of employees are commonly required by employers to verify a person's capacity to work. However, following the enforcement of the Genetic Non-discrimination Act, federally regulated employers can no longer require that employees undergo genetic testing or disclose the results of such testing to determine hiring and employment-related decisions. Employers that violate the act may face fines or imprisonment.

Do waves of collective dismissals constitute a single collective dismissal?
Fasken
  • Employment & Benefits
  • Canada
  • September 06 2017

In a number of Canadian provinces, legislators have enacted a precise definition of 'collective dismissal'. In general, a collective dismissal occurs when a certain number of employees are dismissed within a period specified by the legislation. But what about waves of collective dismissals that extend beyond the period specified in the legislation? Do they constitute a single collective dismissal or several independent collective dismissals? This question was recently answered in Quebec.

You said what? Hiring interview comments prove costly for employer
Fasken
  • Employment & Benefits
  • Canada
  • August 30 2017

Canadian employers which provide inaccurate or misleading information during the hiring process can be held liable for their broken promises. A recent British Columbia Court of Appeal decision is a stark reminder that a negligent misrepresentation during the hiring process can be costly.

Clarification is not required when accepting disabled employee's resignation
Fasken
  • Employment & Benefits
  • Canada
  • August 23 2017

The British Columbia Human Rights Tribunal recently dismissed the argument that an employer could not accept the resignation of a long-term disabled employee without making further inquiries. While it is important for employers to ensure that a resignation is truly intended by an employee, this case illustrates that they have no special duty when regarding resignations of long-term disabled employees and that they can safely accept resignations from employees as long as it is reasonable to do so.

More employee benefits on the horizon
Fasken
  • Employment & Benefits
  • Canada
  • July 26 2017

Significant changes have been taking place across Canada with several jurisdictions, including the federal government, amending their labour and employment regimes. With the introduction of Bill C-44, the federal government has adopted significant reforms to the Employment Insurance Act and the Canada Labour Code. These reforms are already trickling down to the provincial level, signalling a trend towards more employer scrutiny and employee-friendly rules.

Broader workplace harassment claims: is Canada becoming more litigious?
Fasken
  • Employment & Benefits
  • Canada
  • July 12 2017

Can a Canadian employee sue an employer for harassment which is unrelated to a discrimination claim? The answer used to be no; but this is changing. The Ontario Superior Court of Justice recently introduced a new, freestanding basis to sue for workplace harassment. The case highlights the importance of proactively preventing harassment and effectively discharging a duty to respond to complaints of harassment.

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