Jim Wu - Forte Law

Covid-19, Employment Law, Wrongful Dismissal

Responding to wrongful dismissal claims

Last week, the Globe and Mail reported that “scores of unvaccinated workers are filing wrongful dismissal claims against employers”. I have represented employees and employers at various stages of wrongful dismissals, from settlements to trials, and I have been getting many inquiries from employers asking how they should respond to wrongful dismissal claims. Below are my top 3 frequently asked questions and answers.

Q1: I received a letter from a former employee’s lawyer asking me to pay money. What should I do next?

Check to see when you need to respond by. If you only have a few days left, respond to the lawyer and tell them you are in the process of finding a lawyer and need more time – almost 99% of all lawyers will likely say “yes”. It is always easier, quicker, and cheaper for both parties to settle than to go to Court. By telling the lawyer you are getting legal advice, you are telling them that you are taking this seriously and that you want things to resolve as quickly, easily, and cheaply as possible. However, settlements require both sides to compromise and that’s why you need to speak to a lawyer who will tell you both the strengths and the weaknesses of your case and how much it will take for you to take your ex-employee to court versus settling.

Q2: I fired my employee for just cause because they refused to comply with our vaccination policy. Do I have a case?

We cannot give you a firm “yes” or “no” to this question. The reason why is because the question of whether an employer has just cause for termination is highly fact-dependent. Just cause for termination involves a two-step process where the employer must establish that the employee committed some form of misconduct, and that form of misconduct was serious enough to damage the employment relationship beyond repair.

To date, there has been no court decision anywhere in Canada that has ruled on whether non-compliance of a COVID-19 vaccination policy amounts to just cause for termination. We believe that once these cases start to arrive in court, they will all be decided differently, simply because the just cause test will apply differently across different industries, job positions, and work arrangements.

That being said, while just cause is not easy to prove, it is far from being impossible to prove. With the right set of facts, we believe that there is a good chance an employer can prove just cause for terminating an employee for their refusal to comply with a vaccination policy.

Q3: How should I decide whether to settle or go to trial?

I always tell my employer clients that a “win” in a wrongful dismissal is for their business to find the cheapest and least disruptive way possible to make the wrongful dismissal claim go away. For every employer, what this means will be different. Some things that come into consideration are:

How will my other employees whom I fired on similar grounds react if they learn that I settled?
How will my existing employees react if they learn that I settled?
How much time will I be taking away from making my business profitable if I decide to carry on with this lawsuit?
What are my odds of getting a less expensive result in court rather than settling right now?
If applicable, will pending lawsuits have any impact on my plans to sell the business?

These are challenging times and it is important for your business to make the right decisions and choices by consulting a lawyer on your next steps.

This blog is not intended to serve as legal advice, and only provides general information.

Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected]

Covid-19, Employment Insurance (EI)

Fired for refusing vaccination – can I still collect EI?

On October 21, 2021, Employment Minister Carla Qualtrough announced that it is likely that people who lose their jobs for not complying with employer COVID-19 mandatory vaccine policies will not be eligible for employment insurance (EI). Where does this leave those who are unvaccinated and find themselves unemployed because of this? Do they have access to EI?

As an employment lawyer and a former EI adjudicator, I get many questions about EI eligibility. In my time at Service Canada I adjudicated over 9000 claims and I now help workers challenge denials. I have prepared answers to some FAQs below.

Q: I have been fired because of my decision not to be vaccinated and I was denied EI. I am also late into my pregnancy; will my maternity benefits also be denied?

A: These rules apply only to regular EI. These rules do not apply to “special benefits” which are a separate category of EI that includes sickness, maternity, parental, and compassionate care benefits. We do not expect that maternity leave benefits should be denied in this circumstance.

Q: What is the legal basis for denying my EI if I am fired for non-vaccination?

A: The current rules allow Service Canada to deny your EI claim if you lost your job because of your own “misconduct.” Misconduct is defined by the Courts as conduct that the EI claimant knew or ought to have known would impair the performance of the duties owed to their employer and that, as a result, dismissal was a real possibility. I like to put in simpler terms: misconduct is something that you did and that you either knew or ought to have known could get you fired. Refusing to comply with a mandatory vaccine policy could be “misconduct”.

Q: What does Service Canada need to find to conclude that my refusal to comply with a mandatory vaccination policy amounts to misconduct?

A: In order find misconduct (and thereby deny you EI) for failing to comply with a mandatory vaccination policy, Service Canada needs to establish the following:

you knew or ought to have known your employer had a mandatory vaccination policy;
you knew or ought to have known that your failure to comply with that policy could result in your termination;
you were given a reasonable opportunity to comply with that policy; and
you were fired for your non-compliance with that policy and not for some other grounds.

Q: If I was terminated for not complying with my employer’s vaccination policy but my employer chose to terminate me “without cause”, can Service Canada still deny my EI?

A: Yes. The finding of misconduct involves a completely different legal test and there have been many reported cases where the Courts have upheld Service Canada’s finding of misconduct even though the employee was terminated without cause.

Still have questions about a denial? Contact a lawyer with experience in EI matters. Denial of EI benefits can be a significant financial loss, and these decisions can be appealed.

Covid-19, Employer Policies, Employment Contract, Employment Law, Human Rights

New – BC employers must provide employees 5 days of paid sick leave

The BC Government has announced that starting January 1, 2022, all businesses with employees falling under the Employment Standards Act will be required to give their employees up to 5 days of paid sick leave each year. Paid sick leave is a significant change in the minimum employment standards in BC. We tackle some frequently asked questions below:

Q: When does this rule come into effect?

A: January 1, 2022

Q: Are all businesses impacted?

A: All businesses with employees falling under the BC Employment Standards Act are required to follow this rule.

There are some exceptions which could include:

unionized workplaces (which would have their own collective agreements);
independent contractors (who would have their own contracts);
certain professionals such as engineers, accountants, or lawyers (read more); and
federally-regulated businesses, for example those whose businesses are in the air transportation, banks or telecommunications industries (see list).

Q: Which employees are covered?

A: All employees falling under the Employment Standards Act, including full-time, part-time and casual workers.

Q: Are there any conditions these employees need to meet before they become eligible for the paid sick leave?

A: The employees need to have been employed for at least 90 calendar days. There is no requirement that they have worked a certain number of hours or days.

Q: Does the 5 days of paid sick include the 3 unpaid days of sick leave that was recently added to the Employment Standards Act as a pandemic response?

A: No, the 5 paid days are in addition to the 3 unpaid days, meaning that starting January 1, 2022, an employee could be at minimum entitled to 8 days off if they are sick, 5 paid and 3 unpaid.

Q: Is a doctor’s note required?

A: Employers are allowed to ask for “reasonably sufficient proof” and the employee must, as soon as practicable, provide such documentation to their employer. No further details have been provided about what “reasonably sufficient proof” might be.

Stay tuned! We expect there will be more guidance from the Government of British Columbia coming out in the following weeks and we will updating this post.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Covid-19, Layoff, Resignation

Work Refusals and Covid-19: Risky Business Indeed

Covid-19 has put workers and employers in a difficult position. Many have lost their jobs, and others find themselves trying to work remotely for the first time, surrounded by their school-aged children. But what about those still going in to work? Some workers are feeling afraid and uncomfortable, watching those around them be told to stay home, while they go out into a minefield.

What happens if a worker refuses to go to work? For this blog, we will assume that the employer has done everything right in terms of complying with WorkSafe BC and Public Health Authority recommendations. But the worker still feels uncomfortable. What happens if that worker refuses to work or walks away from their job?

Refusal to work can be a quit

Repeating our assumption that the employer is complying with all government recommendations and requirements, fear or discomfort alone does not give the worker the right to refuse to come to work. If an employer is willing to continue employment, but the worker refuses to work out of fear or discomfort, then they may be in effect quitting their job. This would mean employment and all benefits come to an end, with no termination or severance pay.

There would be exceptions to this if the worker falls within the new protected leaves under the BC Employment Standards Act. For example, if they are uncomfortable coming to work, AND they have minor school-aged kids at home that need care. In this case the requirement to care for children would be the basis for an unpaid leave from work, and the worker may be eligible for CERB.

CERB can be lost due to work refusal

Today, applications for CERB opened, to the great relief of many. Under the current legilsation, Canada Emergency Response Benefit (“CERB”) is payable to workers who have “ceased working for reasons related to COVID-19” for at least 14 straight days.

When considering refusing to work due to fear or discomfort, workers need to understand that CERB may be denied or clawed back. The legislation specifically states that quitting a job voluntarily does not meet the requirement of “ceased working for reasons related to COVID-19.”

EI can be lost due to work refusal

For many workers, Employment Insurance (“EI”) would be available if they were laid off due to lack of work or went on a medical leave. EI is generally not available to a worker who quits. The exception to this is a worker may quit and still get EI if they are able to prove that they had “just cause” to leave that job. What is “just cause” to quit your job and still get EI? To paraphrase a Federal Court of Appeal judge, just cause means convincing the Canadian taxpayers that they should pay you money for your decision to become jobless. That sounds like a high bar to meet, but it is not impossible.

Under EI law, you may have “just cause” to quit your job if you can prove two things:

Your workplace was a danger to your health and/or safety; and
You had exhausted all reasonable avenues before quitting.

A work refusal due to fear and discomfort, rather than an objective safety risk, is not likely to be “just cause.”

Work refusals are risky for workers and employers

The stakes are very high for workers and business for work refusals. We recommend that any worker considering a refusal to work get good legal advice before taking that step. A loss of access to 16 weeks of CERB is $8,000, not to mention loss of potential severance pay.

For employers faced with a work refusal, there is also risk. With the changing workplace safety requirements, it can be hard to know if you are compliant. Any negative treatment of a worker after they make a safety complaint could be a Discriminatory Action, and get you in hot water with WorkSafe BC. If you are aware that the worker could be entitled to a protected leave and ignore that, there is risk of an Employment Standards complaint.

Need help navigating work refusals? We advise both workers and employers with proactive advice to avoid large losses down the road.

Employment Insurance (EI)

EI the Basics

Covid-19, Employment Insurance (EI), Layoff

E.I. and Covid-19 Layoffs

E.I. and Covid-19 Layoffs - 5 Tips for Workers and Businesses

*This blog post is current to 8:00 AM on March 17, 2020. Forte Law is offering virtual legal services, including zoom video meetings or telephone consultations, so you can get legal advice from your home or office. *

As many workers and businesses are facing the idea of layoffs for the very first time, understanding the basics of Employment Insurance (E.I.) can be helpful.

Employees may be eligible for Employment Insurance (“E.I.”) benefits if they meet the following:

They have experienced an IOE. An Interruption of Earnings or IOE is where an employee has had 7-straight days of no work and no pay with an employer.
They have worked at least 700* hours in the last 52 weeks (about 5-straight months of full-time work)

*This is the amount needed in Metro-Vancouver. For other regions please check here.

As we each do our part to flatten the curve, we offer employees and employers the following 5 tips to help each other navigate through these difficult times.

Employees

If you have experienced an IOE or believe you will, apply for EI ASAP.

It takes time for your EI claim to be processed. You can apply even if you don’t have your ROE, click on this link, scroll down to the very end and click "apply online". There will be a huge demand for EI, so get your application in early.

That said, if your hours are reduced or you have been out of work for less than 7 days, you should think twice before applying, since you have not met the qualifying conditions and may not be eligible for E.I.

Create a MyServiceCanada account

You can create your MyServiceCanada account once you have submitted your application and received your 4-digit access code in the mail. MyServiceCanada account lets you see your ROE, the status of your claim, how much EI you get paid, and how long you can get paid.

Stay on top of your EI Reports

You must continue to complete your EI Reports in order to get paid. You can complete them online

Look for work while you are collecting EI

You have a legal requirement to do so if you wish to continue collecting E.I.

You are allowed to work part-time and still be paid E.I. in some circumstances

See explanation here.

Employers

ROEs can only be issued after an IOE

If you are laying off an employee because of a temporary closure, the employee will need to have gone through 7 days without work or pay before you can issue the employee an ROE. ROEs that are issued before an interruption of earnings has occurred may require verification from an E.I. Agent and can delay an employee’s E.I.

Consider issuing web ROEs

This is a stressful time for your employee to be out of a job and the last thing they want is to have their EI delayed because of a missing ROE - submit the ROE online - that way everyone (the employee, yourself, and Service Canada gets a copy).

Complete the ROE correctly

If you are laying off employees, complete Block 16 with code "A" and check off either “unknown” or a specific date in Block 14. Make sure you don't check off "not returning" as this can be seen as a termination of employment.

Issue the ROE on time

You have 5 days after the employee experiences an “interruption of earnings” to issue an ROE, so this means you would issue them between 7 and 12 days after the layoffs.

Consider offering some work for employees who are a few hours short of the insurable hours minimum

At present, the law is clear: if an employee does not have enough hours, they will not get E.I. even if they are one hour short. While employers are under no obligation to do so, offering an employee a few more hours of work so that they have enough insurable hours to qualify for EI can go a long way in helping out an employee. Generally speaking, a happy employee is less inclined to sue their employer.

Employment Law

What is Employment Law? Why should Employers care about Employment Law?

什么是就业法？雇主为什么要遵循就业法？

What is Employment Law? Why should Employers care about Employment Law?

吴鹰杰

Jim Wu

加拿大的就业法是站在雇员的立场上，是保护雇员的。雇主必须遵从法律并承担雇主应有的义务。反之，雇主将有可能面对风险，造成意想不到的损失。

Canadian laws recognize that there is a power imbalance between employees and employers. What this means is our laws include legal protections for employees and legal obligations for employers. As an employer, you might wonder, what is at stake for not following the rules?

我们经常会处理类似以下的一些例子（以下称呼及姓氏并非真实）：

The following fictious examples are what we typically deal with in our practice as employment lawyers (please note that any actual resemblances are purely coincidental):

黄先生在温哥华岛购买了一个度假胜地。为吸引更多的中国游客，黄先生雇佣了一位中国人代替了原礼宾部负责人（欧洲人）。黄先生后来收到了他前礼宾部负责人的来信。来信要求黄先生赔偿几万加元，要不就会投诉到人权审裁处。

Mr. Wong has purchased a resort in Vancouver Island. Awestruck by the local beauty, Mr. Wong hopes to attract more Mandarin-speaking tourists and he replaces his head of concierge (a Caucasian) with a Chinese one. Mr. Wong later receives a letter threatening a human rights complaint from his former head of concierge, demanding tens of thousands.

涉及法律的问题： 黄先生可能因种族或出生地的歧视而解雇了前礼宾部负责人。

The Legal Problem: Mr. Wong may have discriminated against his former head of concierge by firing him because of his race or place of origin.

黄先生面对的风险： 黄先生可能会被裁定违反Human Rights Code。结果，他可能不得不支付多种赔偿，包括补偿损失的工资（wage loss)和“损害尊严”赔偿(injury to dignity damages)。除了这些以外，黄先生可能还需要聘用律师来面对人权投诉。

What is at stake for Mr. Wong: Mr. Wong may be found to have breached the Human Rights Code and an award of financial damages could be made including wage losses and injury to dignity damages. Mr. Wong may also need to spend a lot of money to either fight or settle the human rights complaint.

餐馆老板彭女士的一名女员工被其餐馆的另一名男员工受到欺凌和性骚扰。事后，那位女员工向WorkSafeBC举报。当WorkSafeBC在调查过程中提出要查看餐馆职业健康和安全条例，餐馆无法提供。

A female employee of Ms. Peng, a restaurant owner, made a complaint to WorkSafeBC that she was being bullied and sexually harassed by a male colleague. During its investigation of the complaint, WorkSafeBC asks for the restaurant’s bullying and harassment policy and procedure but Ms. Peng is unable to do so as the restaurant does not have one.

涉及法律的问题： Workers Compensation Act要求彭女士制定餐馆职业健康安全条例，并对所有雇员必须进行该政策和程序培训。

The Legal Problem: The Workers Compensation Act requires every employer to have a bullying and harassment policy and procedure and to train all of their employees on that policy and procedure.

彭女士面对的风险： 彭女士可能会因不遵守法律规定，收到遵守令。公司也可能因违反工作场所安全标准而被罚款。在最严重的情况下，这些罚款可能超过100,000加元。

What is at stake for Ms. Peng: A finding of non-compliance and order to comply will likely be made. Companies can also be subjected to fines under the Workers Compensation Act, which can exceed $100,000 for the most extreme safety violations.

董女士开办了一个课余学习中心。董女士对申请职位的老师以2小时的无薪代课作为她聘用评估。目前已被聘用老师有20 位。最近，董女士收到了Employment Standards投诉。

Ms. Tong runs an after-school learning centre. She interviewed 20 prospective instructors and had them as a part of their interview, each teach a 2-hour class without pay. Recently, Ms. Tong received an Employment Standards complaint.

涉及法律的问题： Employment Standards Act 要求雇主支付代课或曾代课老师时薪，哪怕是试用但未被录用。

The Legal Problem: Under the Employment Standards Act, Ms. Tong must pay all her job applicants for their 2 hours of teaching because it is considered to be “work”.

董女士面对的风险： 赔偿代课或曾代课老师时薪，并罚款至少1万加币（500 元为一位老师）。

What is at stake for Ms. Tong: On top of paying wages for the 2 hours of work for all 20 of her prospective instructors, Ms. Tong may be fined a minimum of $10,000.00 ($500 fine for each affected prospective instructor).

张先生无书面合同雇用了一位雇员。一年后，张先生解雇了那位雇员，并给了该雇员一些补偿。但该员工不但没有接受张先生的补偿，而且请了律师并向他起诉。

Mr. Chang hires his newest employee without a written contract. A year later, Mr. Chang fires that employee and offers him some severance. The employee rejects Mr. Chang’s offer and hires a lawyer and sues him.

涉及法律的问题： 由于张先生没有书面雇佣协议。

The Legal Problem: Mr. Chang does not have a written employment contract.

张先生面对的风险： 张先生可能要聘用律师面对诉讼。诉讼结果可能法院命令张先生付遣散费。

What Mr. Chang potentially faces: A court order to pay severance pay, as well as spending lots of money to either fight or settle the lawsuit.

综上所述，雇主要遵循就业法。雇主无论是雇用，解雇，或者介于两者之间的任何冲突，雇主仍有可能违反就业法。为了最大程度减少您的风险，建议您聘用就业法律师保护雇主的权力。

In summary, employers face serious liabilities. Whether it is hiring, firing, or anything in between, even the most cautious employer can run afoul of employment laws. There are proactive steps you can take to avoid these risks. To minimize liability, we recommend you get advice from an employment lawyer.

本博客旨在提供一般性信息，不作为正式法律建议用途。

This blog is not intended to serve as legal advice, and only provides general information.

每种具体情况必须依据其自身事实加以考虑。如若需要相关法律咨询建议（普通话或上海话），请联系吴鹰杰律师。联系邮箱地址：[email protected]。

Every situation must be considered on its own facts. Need legal advice in Mandarin or Shanghaiese Dialect? Contact Jim Wu [email protected].