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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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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How a McDonald’s Employee received over $100,000 for Wrongful Dismissal

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The factors for assessing wrongful dismissal damages in Canada are well established, and will generally include the person’s age, tenure, the character of employment (or the degree of expertise or specialization) and other economic factors that may impact a person’s ability to find comparable work, such as education, the health of the local economy and the demand for her services.

To the chagrin of many, there is no universal formula for assessing wrongful dismissal damages. However, people in low-skill or semi-skilled jobs often do not receive extended notice periods due to the perceived availability of comparable work – a food service worker can arguably work as a cashier, a convenience store clerk or even a construction labourer. Continue reading “How a McDonald’s Employee received over $100,000 for Wrongful Dismissal”

Terminated? Fired? Dismissed? : 7 Factors in Assessing Severance Pay

We’ve all heard one of the following stories… An employee in heavy industry is laid off because of a downturn in the economy. Or an office worker is let go because she doesn’t get along with her supervisor. Or a company is going through a restructuring and has to terminate a quarter of its staff.

While the creation and destruction of jobs is essential to our economy and our workplaces, people dealing with job loss are nonetheless dealing with a unique form of personal tragedy. After all, a job is not only a source of income, it contributes to our overall well-being and is an important part of our identity.

Continue reading “Terminated? Fired? Dismissed? : 7 Factors in Assessing Severance Pay”

A Lesson in How Not to Conduct a Workplace Investigation

As I outlined in a previous article, When a Termination Becomes a Wrongful Dismissal, when an employee is terminated without good legal reason, the employee will generally be entitled to damages for wrongful dismissal. An assessment of these damages would include considering the employee’s age, tenure, job responsibilities and the prospects of future employment.

However, courts also have the authority to award aggravated or punitive damages in certain circumstances.  A recent BC Supreme Court case provides a very good example of when this type of compensation may apply.

Continue reading “A Lesson in How Not to Conduct a Workplace Investigation”