Employee Rights in a Workplace Investigation

Most people working in larger organizations have probably seen the following scenario, either from near or from far:

A co-worker has filed a complaint with human resources. We may know who the complainant is, but most likely their identity is kept anonymous to protect against retaliation. One by one, a human resources manager brings in witnesses to answer questions with a view of proving or disproving the complaint or ‘building a case’. Inevitably, the subject of the complaint will be asked to participate in one or more interviews. The conversation lacks context and the respondent is asked vague questions about past conduct. When the respondent provides a definitive answer, the interviewer ominously asks “Is there anything further I should know”, or even worse “Are you being completely truthful?”

All of which begs the question: if ever asked to participate in a workplace investigation, what are an employee’s rights?

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Fixed-Term Employment: Manage the Risks and Respect Your Employees

Some employment relationships are short term or temporary by necessity, such as when an employee is hired to complete a discrete project or fill a maternity leave position. In these situations, the parties will often sign a contract that sets out how long the employment will last and when exactly it will end. We call such agreements fixed-term contracts.

One benefit to employers of a fixed-term contract is that when the employment ends on the date specified (subject to the cautions set out below), the employee is not entitled to reasonable notice or severance. However, there are also potential risks to using fixed-term employment contracts in your business.

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The Challenge of Terminating for Cause: Stock v. Oak Bay Marina Ltd.

What’s the difference between a termination with cause and without? Most people seem to have a good idea, and recognize that a termination with cause is rooted in employee misconduct. If it has been discovered that an employee has been stealing, lying or committing other forms of misconduct, the employer may be able to argue that the employee has fundamentally breached the employment agreement and that the employer is therefore entitled to put an end to the arrangement without any compensation or severance pay.

Or so the thinking goes… What many workers and employers may not recognize is that terminating someone for “just cause” can be remarkably challenging, as one company recently discovered in the recent BC Supreme Court decision Stock v. Oak Bay Marina Ltd., 2017 BCSC 359.

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Defining your ‘Why?’ in Business and Law

Last month I took a leap of faith from a large, well established and respected law firm to a small, energetic boutique that was opening an office in my town. In between the hustle of changing offices, I was afforded a rare opportunity for some down time to look at myself and my practice beyond client needs, file demands and limitation dates. Questions of self-doubt started to dog me. Anxiety about financial insecurity, workflow and resources kept me awake at night. At least once after giving my resignation I asked myself “what have I done?” Continue reading “Defining your ‘Why?’ in Business and Law”

Easing the Burden of Proof on Failure to Mitigate? : Logan v. Numbers Cabaret Ltd.

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In any wrongful dismissal lawsuit, you are almost certain to find the defence that the worker “failed to mitigate” their losses. In common terms, this little bit of legalese suggests that the worker failed to take reasonable steps to find comparable employment, and as a result, they should be awarded less damages for their termination. While often pled, arguments on the failure to mitigate often fall flat. The reason for this is that it’s been the employer’s responsibility to demonstrate that a worker has failed to mitigate, or in the words of the Supreme Court of Canada: “i) the employer bears the onus of demonstrating both that that an employee has failed to make reasonable efforts to find work and ii) that work could have been found”: see Evans v. Teamsters, Local 31, [2008] 1 S.C.R. 661. This can be extremely difficult to do.

However, a recent BC Supreme Court decision may suggest that the onerous task of proving a mitigation defence is easing. Continue reading “Easing the Burden of Proof on Failure to Mitigate? : Logan v. Numbers Cabaret Ltd.”

Probationary Periods – Are they Legal in Canada?

Probationary periods in employment… for  something seeming so simple,  they still cause a lot of confusion, and employees and employers alike are frequently mistaken about the legality of probationary periods and how they apply to the non-unionized worker. Employees who are terminated during probationary periods often accept their lot without ever receiving legal advice, while employers often terminate ‘probationary’ employees without providing any compensation, only to be surprised by a demand letter or civil action claiming wrongful dismissal.

So where do these challenges come from? And how can they be remedied?

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Pets: A Workplace’s Best Friend?

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Research shows that, in addition to happier, healthier employees, pet-friendly employers also witness reduced absenteeism, increased productivity and creativity, a greater willingness to work late, and improved talent attraction and retention. A number of high-profile companies, like fellow B Corps Hootsuite and Etsy, have taken this research to heart and adopted “dog-friendly” policies.

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3 Problems with Union Members Hiring their Own Lawyers

I often receive requests for consultations from unionized workers dissatisfied with their employer, their union or both. Frequently, this dissatisfaction arises out of the worker having a grievance with the company, but he or she feels that they are not receiving proper representation from their union. Before going ahead and hiring a lawyer outside of their union for advocacy, there are 3 challenges that people in this position should know.

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Flex Hours: Making it Work for Your Business

Researchers and pundits alike hail the benefits of flexible work arrangements, which include employee happiness, productivity, and engagement. In certain circumstances, such as where an employee faces health issues or family responsibilities, flexible work hours can also make the difference between retaining and losing a key part of your team.

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