Probationary Employee Rights

Posted by Johannes Schenk on January 16th, 2017 — Posted in Employment Law, Human Rights Law, Labour Law, Uncategorized

Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42, deal with probationary employee termination rights. Surprising that this case was actually litigated given the very small amount the claim was worth. Employer termination rights are limited and the employee must be given a fair and reasonable consideration.

Risk in Filing Inflated Builder’s Lien

Posted by Johannes Schenk on January 16th, 2017 — Posted in Litigation

Atlas Painting & Restorations Ltd. v. 501 Robson Residential Partnership, 2016 BCSC 2472, concerns an inflated builder’s lien. Should you or shouldn’t you? It’s worth a read to summarize some of the principles underlying lien filings.

Workplace Accommodation is a Quasi-Constitutional Right

Posted by Johannes Schenk on December 21st, 2016 — Posted in Employment Law, Human Rights Law, Labour Law, Uncategorized

Commission de la santé et de la sécurité au travail c. Caron, 2015 QCCA 1048 (CanLII), concerns accommodation of an injured employee. The Court in this case says that the human rights legislation supersedes all other legislation and is quasi-constitutional in nature. The employer cannot remove themselves from the human rights regime on the basis of other legislation.

Employer Good Faith Duty Applies to Incentive Plan Payout

Posted by Johannes Schenk on December 20th, 2016 — Posted in Employment Law, Labour Law, Litigation

Styles v Alberta Investment Management Corporation, 2015 ABQB 621 (CanLII), concerns an employer’s duty of good faith in the context of an incentive plan payout. Here the employee was terminated shortly before the incentive plan payout date. Long story short version: bad move.

The Court had this to say:

[66]This duty of reasonable exercise of discretionary contractual power is not a limitation on “the right of an employer to determine the composition of its workforce”; Bhasin at paras 53-54. It is designed to deal with both the unfair manner of termination and the consequences that flow from unduly insensitive conduct of an employer when dismissing an employee. In some situations, where the termination deprives an employee of the right to receive earned performance bonuses, grants, or awards, then the exercise of the discretion to terminate without cause becomes arbitrary or capricious when the employer creates circumstances under which the employee would be unable to receive the bonuses or other benefits and provides no reasonable or meaningful explanation for such deprivation.

The termination in this case deprived the employee of a benefit in a manner contrary to the duty of good faith contractual performance. The case also puts forward an excellent contingency analysis on damages resulting from the failure to pay out on the incentive plan.

Suspension Can Be Constructive Dismissal

Posted by Johannes Schenk on December 19th, 2016 — Posted in Employment Law, Human Rights Law, Labour Law, Uncategorized

Source: Potter v. New Brunswick Legal Aid Services Commission – SCC Cases (Lexum)

concerns the suspension of an employee. The employer’s handling of the suspension resulted in a constructive dismissal. In determining a remedy, the Court did not reduce the notice period by pension payment amounts.