Employment Law 101

February 12, 2015   |   by Michael Sutherland

There is an old adage, that your company’s most important resource is its employees. Regardless of the product, if you don’t have good employees you can trust, how can you expect your business to operate efficiently and profitably?

For most employers, the good employees are the easy ones to manage. Keep them happy, treat them with respect, and promote them according to their skills.

But what to do with problem employees? From an employer’s perspective, this is an area of law that needs to be handled properly as it is fraught with potential problems for the employer.

The law expects that all employees will be dealt with fairly and with respect. For an employee, there are many avenues of protection. If there are past wages owing that have not been paid, the Employment Standards Branch of BC has the authority to hear complaints and force employees to be paid what they are owed. If an employee feels they have been discriminated against, the British Columbia Human Rights Tribunal has the authority to hear complaints based on the defined areas of discrimination in the Human Rights Code. These areas include discrimination based in sex, race, age etc.

Unless the employer is firing an employee for cause, the law demands that an employee be given a reasonable period of notice (severance). The notice is calculated on a number of factors, including the employee’s length of employment, age, education, position, unique skills of the person’s job, and the ability to get another comparable job. While the Employment Standards Act has a calculation for notice based solely on years of employment, the courts generally exceed the minimum requirements of the Employment Standards Act, and may award up to two years salary for the employee’s notice period.

Wise employers will document the good performance as well as the poor performance of any given employee. Employees are also wise to document praise and superior accomplishments at work, as well as problem issues when they happen. Often, by the time the issue gets to a lawyer, the employer and the employee have seized on certain facts that advance their respective position, and have ignored the facts that don’t.

Employers further have a duty to accommodate employee’s issues, including additional training for employees that are having a difficult time performing the job. But it also can be extended to funding anger management classes for employees with anger problems, or drug and alcohol treatment where required.

Employers should be very clear when hiring an employee as the terms of employment, its length, what the salary and benefits will be, and document the agreement under which the employee is being hired. The employer also needs to be aware that deviating from that agreement to the employee’s detriment can be considered a constructive dismissal, which has the same effect as firing someone without cause. For instance, a demotion in position, or a unilateral reduction in salary can be considered a constructive dismissal.

If an employer decides to treat an employee so poorly that they quit, rather than dismissing the employee, the courts may consider this to be a constructive dismissal as well and calculate a reasonable period of notice owing to the employee, even though the employee technically quit.

These are only some of the issues facing employees and employers in today’s workplace. At the end of the day, it is always advisable to get legal advice early in the process whether you are an employee or an employer, in order to make informed decisions about how to handle an employment problem.

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