Management countered with a defamation action. The employee’s statements were protected by a qualified privilege due to the employee’s comments concerning the management of the company’s affairs and the financial health of the company.

In short, the more the individual looks like an employee the more they will be treated as an employee for the purpose of a wrongful dismissal analysis. The Court will look at both the contractual terms and how those terms are actually exercised in the specific instance. Even where the contract calls the individual an independent contractor the court will treat that individual as an employee if the relationship looks like a traditional employment scenario.

At the end of the day, and in the absence of a properly written contractual notice period, common law notice reasonable notice periods may apply.

Employee 1: 60 years old, 14 year employee, service manager for a restaurant grease trap bio-remediator. 15 months reasonable notice.

Employee 2: Similar age and responsibility as an office manager. 11 month notice.

The BCCA upheld a 15 month reasonable notice award.

We now have the latest word on this complicated issue from the BC Court of Appeal in the context of human rights adjudication and workers compensation disability reviews in Workers’ Compensation Board v. British Columbia (Human Rights Tribunal) , 2010 BCCA 77.

Briefly, and I emphasize briefly, as this is a very complicated series of arguments that underlie the decision, the human rights tribunal does get to hear a matter despite the fact that the matter has been canvassed by another tribunal. Res judicata, estoppels, and abuse of process arguments don’t prevent the tribunal from taking a look at the matter.

Whelehan v. Laidlaw Environmental Services Ltd.

Winterburn v. Domtar Inc., 2002 BCSC 1418

Wells v. Patina Salons Ltd., 2003 BCSC 1731

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.