In case it wasn’t obvious, reasonable notice periods are suspended by maternity leave. Don’t terminate your pregnant employees or employees that are on maternity leave. See the following cases:
Whelehan v. Laidlaw Environmental Services Ltd.
Winterburn v. Domtar Inc., 2002 BCSC 1418
Wells v. Patina Salons Ltd., 2003 BCSC 1731
Macaraeg v. E Care Contact Centers Ltd., 2008 BCCA 182, deals with the issue of whether rights under the Employment Standards Act can form the basis of a civil action. Answer: no.
Mr. Justice Chiasson states for the Court:
Summary
[100] In my view, the learned chambers judge erred in concluding that rights granted by employment standards legislation are incorporated into employment contracts as a matter of law regardless of the intentions of the parties. The cases relied on by the chambers judge do not support such a conclusion.
[101] The proper analysis begins with Orpen: did the legislators intend that conferred rights could be enforced by civil action? The answer to the question requires consideration of the legislation as a whole. If it affords effective enforcement of the rights, the general proposition, that statutorily-conferred rights are to be enforced not by court action, but by a statutory mechanism, applies. If the legislation does not afford effective enforcement, the exception to the general rule applies and the rights can be enforced in a civil action. The civil action will be based on recognized causes of action. In the case of rights conferred on employees through employment standards legislation, the rights will be implied terms of the employment contract and enforced through an action for breach of contract.
[102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for a right of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcement is through the statutory regime and no civil action is available.
[103] In this case, the ESA provides a complete and effective administrative structure for granting and enforcing rights to employees. There is no intention that such rights could be enforced in a civil action.
This authority is not inconsistent with the caselaw that holds an employer cannot contract for less than the minimum statutory notice periods.
M.D.A. Marine Design Associates Ltd. v. British Columbia Ferry Services Inc., 2008 BCSC 1432, lays out a great professional reputation defamation analysis applicable to contract and employment scenarios.
Miller’s Landing Pub Ltd. v. Liquor Control Licensing Branch (General Manager), 2009 BCSC 1352, outlines an excellent BC perspective on Judicial Review standards. It isn’t quite as simple as just applying correctness or reasonableness.
This week sees the BC Supreme Court issue a ruling in Blackmore v. British Columbia (Attorney General), 2009 BCSC 1299, that says once the AG makes a decision not to prosecute a criminal matter, that decision is final. The AG may not then have the matter further reviewed and decide to prosecute the matter. Especially not three times.
The ruling also has a very useful summary of jurisdictional issues and decision making powers.