Constructive Dismissal, Employer Policies, Employment Contract, Employment Law

How Do I Fire Someone Properly?

5 TIPS FOR EMPLOYEE TERMINATIONS

As an employment lawyer, one of the most common questions I get from employers is “How do I fire someone properly?” Proactive work can save a lot of stress and expense, compared to a “fire now, ask questions later” approach. Here are 5 things to think about when terminating an employee.

1. With or without cause?

If you terminate with cause, the employee could be terminated effective immediately and would not be entitled to any severance. However, proving that you have cause to terminate an employee is a high bar to meet. “Cause” means that an employee has engaged in some type of serious misconduct that would justify dismissal without further warnings or other types of progressive discipline. Most terminations are without cause and advance notice and/or severance pay is required.

2. Start with the employment contract

When an employee is fired without cause, calculating how much severance pay is owed can be straightforward if there is a valid and enforceable termination clause in their employment contract. Most employees are governed by the BC Employment Standards Act (ESA), which outlines the basic standards of compensation and conditions of employment—it sets the minimums. If the amount of pay or notice in the contract falls below the minimum termination notice required by the ESA, the termination clause is invalid, and an employee could be entitled to severance under the “common law”.

3. Consider human rights

The BC Human Rights Code helps protect people from discrimination in the workplace. In plain language, discrimination means treating someone badly or denying them a benefit based on a personal characteristic that is protected by the Code. Employees may file a complaint with the Human Rights Tribunal if they believe they have been discriminated against by their employer. As such, you cannot fire your employee on the basis of any protected human rights ground. If the employee can prove that their protected characteristic, such as age, was a factor in the adverse impact, for example the termination of their employment, you could be found to have discriminated against your employee. Since the remedy for a human rights claim can be substantial and includes wage loss and injury to dignity damages, it’s important that you do not terminate an employee based in any part on their protected personal characteristics. Protected personal characteristics for employment can be found here: http://www.bchrt.bc.ca/human-rights-duties/characteristics.htm.

4. Write it up

An employer must be as clear and concise as possible when communicating a termination of employment. In advance of the termination meeting, prepare a termination letter to give to the employee at the meeting. The letter should include a specific date of termination, and in some cases, could include a severance offer in exchange for a Full and Final Release from the employee. Remember, however, that you cannot ask an employee to sign a Release in order for them to receive their basic minimum entitlements under the ESA. Termination letters should be prepared meticulously with careful reference to the employee’s contract and the requirements of the ESA. Even innocent mistakes can be costly.

5. Respectful delivery

You may want to start the termination meeting by acknowledging that this was a difficult decision to make for the company. You are not obligated to explain or give reasons for the termination. Ideally, you should go over the contents of the termination letter as briefly as possible. If possible, conduct the termination meeting with another employee present, preferably an office manager or supervisor, so that you have a witness—especially if it’s expected to be a difficult meeting. If you’ve presented the employee with a severance offer and Release, they should be given adequate time to review the information and be provided with an opportunity to seek legal advice.

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].

Employer Policies, Employment Law

British Columbia Government Introduces Bill 13 – Pay Transparency Act

On March 7, 2023, the British Columbia government introduced Bill 13, the Pay Transparency Act, in the British Columbia legislature. Once passed, the Pay Transparency Act will:

require employers (unless exempted by regulation) to specify in job advertisements either the expected salary or wage for a job, or range of expected salary or wage (subject to limitations to be set out in regulations);
prohibit employers from asking about an employee’s pay history from other positions (unless that information is publicly available, such as senior public servants);
prohibit reprisals against employees who inquire about pay or disclose information about their pay to other employees;
require the government to publish an annual report setting out differences among certain groups of individuals in relation to pay, a description of trends in relation to those differences, and the number and nature of reports of employer non-compliance in the year; and
require “reporting employers” to prepare, on or before November 1 of each year, a pay transparency report.

A “reporting employer” is defined in the statute as government employers and certain government agencies and crown corporations, as well as private sector employers with the following numbers of employees on January 1 of each applicable year:

(a) for 2024, 1,000 or more;

(b) for 2025, 300 or more;

(d) for a year after 2026, more than the lesser of 49 and any number set out in regulations.

The details of what will be required in pay transparency report will be established by regulation after Bill 13 passes into law.

Bill 13 also specifies that the newly created office of the Director of Pay Transparency must consult with affected Indigenous governing entities prior to completing an annual report.

All sections of the bill will come into effect on royal assent, except for the requirement to specify wages in a publicly advertised job opportunity, which is scheduled to take effect on November 1, 2023.

Bill 13 will undoubtedly be welcome news to employees and job seekers. For employers, the impact of Bill 13 on operations remains to be seen, dependent on the details established later by regulation.

The lawyers at Forte Workplace Law are experienced in helping employees understand their rights, as well as helping employers understand and comply with new regulatory obligations. We would be pleased to assist both employees and employers navigate the Pay Transparency Act once it becomes law.

Covid-19, Duty to Accommodate, Employer Policies, Employment Law, Human Rights, Privacy

Mandatory Vaccines for Regulated Health Care Practitioners

Updated: March 21, 2022

The BC Government has revised its plan to mandate vaccines for all regulated health care professionals. On March 10, 2022, the BC Public Health Officer announced that they will be moving forward with an “informed consent” system for some health care workers which may require disclosure of vaccination status to patients or clients. The new Order was issued on March 7, 2022 and requires regulated colleges to record each registrant’s vaccination status by March 31, 2022. Vaccination will still be required for health care workers practicing in certain settings.

The landscape of employment law continues to change as BC brings in new measures to manage the ongoing COVID-19 pandemic. This time, the change affects employees and employers working in regulated health care professions.

On February 9, 2022, the BC Public Health Officer expanded its vaccine mandate to include health care workers like dentists, chiropractors and other practitioners who are governed by a regulatory college. According to the new announcement, workers who get a first dose of the vaccine by March 24, 2022, and a second dose between 28 and 35 days after, may continue to work.

The BC Provincial Health Officer is finalizing the order in consultation with the health professional colleges and further details will be provided about how the vaccine mandate will be rolled out. As we’ve seen with other government mandates, workers who fail to get vaccinated by the imposed deadline may be terminated or placed on unpaid leave.

We have worked with many dentists and other regulated health care professionals to navigate the twists and turns of the COVID-19 pandemic, and this will be another challenge for employers to tackle. That is because government vaccine mandates do not eliminate all risk associated with terminating a worker who refuses a vaccine. There are a number of aspects to mandatory vaccines that must be handled carefully, including medical exemptions and the privacy of workers’ personal information. We may see health professional colleges taking a lead role in collecting information about vaccination status and investigating instances of non-compliance, however this does not replace an employer’s legal obligations. Here are the top three things that those working in a regulated health care profession should know:

1. The employer has a duty to accommodate in some circumstances.

In rolling out vaccine mandates, even if they are government ordered, employers still need to consider their responsibilities to workers under the Human Rights Code. Employers have a duty to accommodate workers who can demonstrate that they are unable to be vaccinated for reasons protected by the Human Rights Code (for example, disability or religion) to the point of undue hardship. In deciding whether it is undue hardship to continue employment of an unvaccinated worker, employers must consider the personal circumstances of the worker, and take into account the safety of the workplace and the requirements of both the government and their regulatory body.

2. An employee’s vaccine status is sensitive health information.

As healthcare practitioners know, personal health information must be handled with care. This includes vaccine status. The Personal Information Protection Act allows private sector organizations to collect, use, and disclose an employee’s personal information for limited purposes, if appropriate safeguards are in place. This means that employers must have a designated process for protecting the privacy of information about vaccine status which also complies with the requirements of their respective regulatory colleges. These privacy obligations extend to prospective employees who are applying for a job and are asked to disclose their vaccination status.

3. Mandatory vaccine policies should be drafted carefully.

Employers in a government-mandated industry should have a written vaccine policy that complies with all BC public health orders and is applied consistently. This policy should address what will happen when a worker has a qualifying exemption and is unable to be vaccinated. There should also be a clear process for how to collect, use and protect each employee’s private information.

A full list of health care professions affected by the order can be found here.

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, Employer Policies, Remote Work

Time to Work at Home (again) – Do you have a Policy for that?

With rising Covid numbers, many workers who had returned to the office are now turning around to head back to working from home. The November 7^th B.C. Provincial Health Order states that employers should “encourage” their workers to work from home, if feasible. The purpose of the Order is to reduce the risk of transmission of Covid-19 in workplaces, but it is important to remember that employers are still responsible for ensuring their employee’s safety while working remotely.

WorkSafe BC Requirements

WorkSafe BC requires all employers to have a working from home health and safety policy in place, and provides guidelines for how to work from home safely. A Work from Home policy should include the following:

Employees should assess their workspaces and report any potential hazards to their manager
An evacuation plan for the worker’s home and how to contact them in case of an emergency
Safe work practices and how to report any work-related injuries
Communication plans for checking in on workers working alone or in insolation
Ergonomic considerations

Other Considerations

Beyond safety considerations, there are other issues that need to be addressed for remote workers. Will their hours of work be the same or different? What protections are in place for company property and electronic information? What equipment and supplies will be provided by the company? How will employees stay connected with other employees in the workplace?

Does your company have a Work from Home policy? Whether you are an employer or a worker, if working from home is in the mix, you should know the answer to this question. While we all hope the restrictions in the Order will not continue after November 23^rd, it is now clear that we need to be ready for ongoing remote work. If your company does not have a policy and safety measures in place for remote work, you can reach out to WorkSafe BC or speak to an HR professional or employment lawyer for help.

Employer Policies, Human Rights, Sexual Harassment

Sexual Harassment – BC law is clear even if the news is not

Human Rights Basics Series

I have advised many clients about sexual harassment issues since I began practicing law in 2004. It never ceases to amaze me the things that people think it is OK to say and do at work. The news stories and debate about sexual harassment during the Trump campaign confirmed to me that there is still a need for education and information on the important issue of sexual harassment. In BC, the law is actually pretty clear when it comes to workplace sexual harassment.

Workplace Sexual Harassment is Against the Law

Now, that has got to be one of the most simple and straightforward statements that a lawyer has ever made. In British Columbia, one of our provincial laws is the BC Human Rights Code. Section 13 of the Human Rights Code states that discrimination at work based on sex (among other things) is not allowed. This makes sexual harassment at work against the law.

Elements of Workplace Sexual Harassment

The basic elements of the legal definition of workplace sexual harassment in BC are also not under debate. The elements were established by the Supreme Court of Canada in 1989 in a case called Janzen v. Platy Enterprises Ltd., [1989] 1 SCR 1252, as follows:

Sexual harassment in the workplace is unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job‑related consequences for the victims of the harassment.

Unwelcome Conduct

For conduct to be sexual harassment, it must be unwelcome. I often get the question, if coworkers are involved in a romantic or sexual relationship, is this sexual harassment? The Human Rights Code does not prohibit consensual relationships at work, as they are welcomed by both participants.

Conduct of a Sexual Nature

Sexual harassment takes place in many forms and can include everything from comments, emails, texts or sexual jokes to sexual propositions, persistent romantic pursuit, sexual touching or assaults.

Negative Impact on Work or Work Environment

Workplace sexual harassment has a negative impact on the victim. The negative impact can take many forms, from embarrassment and humiliation, to termination of employment, or differential treatment at work.

What to do about Workplace Sexual Harassment

Every workplace should have a harassment policy. If you are an employee dealing with sexual harassment, the first thing to do is look at your employer's harassment policy, which should set out a process for dealing with harassment and making a complaint. You may also want to consult with your union or an employment lawyer (like me) for advice.

If you are an employer, and you don't have a policy dealing with sexual harassment, you should speak to an employment lawyer (like me) about putting one in place. A policy including an internal harassment complaint process gives employers the chance to address these issues quickly and internally, rather than employees having to resort to complaints to the BC Human Rights Tribunal.

Tags: Workplace BC, BC sexual harassment law, Human rights bc workplace, BC work laws, Sexual harassment workplace, Sexual harassment laws BC