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July 29, 2012June 27, 2024

Terminating Employees

The BC Employment Standards Act (the “Act“), requires employers to give employees compensation for length of service when they are being terminated. Employers can also discharge this liability by giving employees written notice or a combination of pay and written notice.

Compensation for length of service under Section 63 of the Act:

After 3 consecutive months of employment, the employer must pay an employee an amount equal to one week’s wages, or give the employee one week’s written notice or a combination of the two.
After 12 consecutive months of employment, the employer must pay an employee an amount equal to two weeks wages, or give the employee two weeks written notice or a combination of the two.
After 3 consecutive years of employment, the employer must pay an employee an amount equal to three weeks wages plus one additonal week’s wages for each additional year of employment to a maximum of 8 weeks wages. The employer can discharge this obligation by giving written notice or a combination of written notice and pay.

An employer cannot change the employee’s conditions of employment without the employee’s consent after notice of termination has been given.

The notice period cannot coincide with an employee’s vacation.

Vacation pay is payable on compensation for length of service.

An employer is not required to give compensation for length of service or to give written notice of termination in the following circumstances:

The employee resigns or retires
The employee is dismissed for just cause
The employee is working under an arrangement whereby the employer can request the employee to come to work at any time for a temporary period and the employee can accept/reject one or more of the temporary periods
The employee is employed for a definite term
The employee is employed for specific work which is to be completed within a period of up to 12 months
It is not possible for the employment contract to be performed due to an unforeseeable event or circumstance (except for receivership or insolvency)
The employee is employed at one or more construction sites and the employer’s principal business is construction
The employee has been offered and has refused reasonable alternative employment
The Act does not apply to the employee

The information provided above relates to an employer’s statutory notice obligations.

Employers must not forget that common law reasonable notice obligations would apply even in situations where the Act does not require notice. A couple of examples:

The Act does not require an employer to provide compensation for length of service if the employment is for a definite term. However, if an employer terminates an employee prior to the end of a fixed term contract, pursuant to the common law, an employer must pay out the balance of the term, unless the contract provides for some other period of reasonable notice.
The Act does not require an employer to pay compensation for length of service to an employee who is excluded from the application of the Act. However, these employees must be given notice in accordance with the common law requirement to provide reasonable notice.

Employee terminations must be done carefully and employers are encouraged to seek legal counsel before terminating an employee or employees.

Stay tuned for further posts on terminations and employer obligations under the common law.

July 16, 2012June 27, 2024

The Insecure Manager – Part 2

Earlier this month, I wrote about the characteristics of an insecure manager. Unfortunately, many employees are faced with an insecure manager at some point in their work life and it is difficult to know what to do.

In this post, I provide tips on what you can do to protect yourself and your career if you are faced with an insecure manager.

Because these people suffer from low self-esteem and you are seen as a threat, do whatever you reasonably can to boost their ego. Yes, this includes praising them when you can, although it is hard to do. However, don’t overdo it, otherwise you will come across as insincere.
Do not challenge his/her authority directly.
Do everything you can to reassure him/her that he/she is the boss and that you understand your place in the hierarchy.
If he/she does something well, acknowledge it publicly – insecure people crave recognition from others.
Stay out of the limelight as much as you can. With an insecure manager, there can only be one star on the stage.
Respond thoughtfully to his/her criticisms – don’t react.
Pick your battles carefully; don’t sacrifice yourself on every hill.
Because the insecure manager is threatened by your skills and views you as a competitor, he/she will do everything possible to create negative perceptions about you. To address this, you need to build allies in the organization and you need to ensure that other people in the organization know your capabilities.
Seek advice from a person who is higher up in the organization that you can trust. That person is likely to have a better understanding of the situation and of your manager and may be able to help you.

If, after taking the actions outlined above, you still find that the situation is unbearable, it is time to cut the cord and to find another job before you suffer a complete breakdown.

July 7, 2012June 27, 2024

Common law severance

In Terminating Employees, I discussed the severance obligations imposed on an employer by the BC Employment Standards Act, when an employer is terminating an employee. In this post, I will provide an overview of an employer’s common law obligations when it seeks to end the employment relationship.

To recapitulate briefly, the BC Employment Standards Act sets out the minimum payment or working notice that an employer must give to an employee who is being terminated. For these minimum severance obligations to apply, it must be clearly stated in the employment contract. If there is no employment contract, or the employment contract does not contain a termination provision or the termination provision is ambiguous, an employer must give an employee notice or payment in lieu of notice, in accordance with the common law concept of reasonable notice.

The amount of reasonable notice that an employer must give, depends on the facts of each situation. If too little notice is given, an employer runs the risk of the employee bringing a wrongful dismissal action. While calculating reasonable notice is a complicated process, it is not done in a vacuum and the following four factors are used as a guide:

The employee’s age
The length of service
The employee’s position including salary
Availability of similar employment

Generally, an older employee who has worked for a longer period of time will be entitled to more notice. However, one must also consider the nature of the position and the availability of similar employment. Thus, a younger employee who has not worked for a long time could be entitled to a longer notice period if the employee’s position requires significant expertise or if the kind of job that he/she is doing is rare and it would be difficult for the employee to find alternative employment that is comparable.

Common law reasonable notice would also be impacted by “inducement”. Accordingly, an employer who induces an employee to leave secure employment and then fires the employee without cause, would have to give more notice.

While the upper limit of common law reasonable notice is generally 24 months, an employee could be entitled to more notice in special circumstances.

An employer can discharge its common law reasonable notice obligations by giving an employee working notice, pay in lieu of working notice, salary continuance or a combination of these options. Employers should seek legal advice when structuring severance packages as the courts are very strict on employee entitlements. For example, where an employee is given pay in lieu of notice, the employer must also give the employee any and all amounts that the employee would have received had the employee worked during that period. This includes salary, benefits, commissions, stock options, etc.

Unlike the situation with statutory severance, an employee who claims to be wrongfully terminated, must seek to minimize his/her losses. This is called the duty to mitigate and requires an employee to make reasonable efforts to find suitable alternative employment. If an employee fails to mitigate his/her losses, the court may reduce the amount of damages that it would otherwise have awarded to the employee as reasonable notice. The employer carries the burden of showing that the employee failed to make reasonable efforts at finding alternative employment or that the employee turned down suitable offers.

The content of this article is for informational purposes only and is not legal advice. You should consult a lawyer before taking any action.

July 2, 2012June 27, 2024

The Insecure Manager

It seems that some people are born to manage – they do everything right. They are secure, confident men and women, who know how to get the best out of people. As a result, employees who report to these managers perform well and the teams that they manage, contribute positively to the organization. These managers know that the successes of their team members reflect positively on them as the group leader and they are quick to recognize and encourage talent.

Unfortunately, however, organizations are rife with poor managers. Too often, these are people who are thrust into management positions or made team leaders without the training and skills needed to successfully manage and lead a team.

Of the various kinds of poor managers that an organization can have, one of the most harmful, is the insecure manager. If unchecked, this kind of individual will create a hostile work environment and drive away top performers and hard-working employees.

An insecure manager is not difficult to spot as she/he will generally exhibit the following behaviours:

She/he is a perfectionist. The tiniest little mistake is blown out of proportion and brought to an employee’s attention. However, she/he never makes mistakes – it is always someone else’s fault.
With the insecure manager, every mole hill is a mountain.
She/he prefers to correspond in writing so that she/he can point out an employee’s mistakes and tell them how the work should be done.
She/he never praises an employee’s work, no matter how well the employee performs or what other people say.
She/he micromanages everything.
She/he “sucks up and kicks down”.
She/he is threatened by an employee who is smart and intelligent and will always find ways to control such employees and put them down.
Every conversation with her/him is like a job interview – she/he will constantly tell you how experienced she/he is and what great skills she/he has.
She/he will constantly find ways to undermine the work of people who work for her/him.
To overcompensate for his/her insecurity, she/he will resort to bullying and power games.
She/he is quick to take credit for team successes but will blame everyone else if things don’t go as expected.

If the behaviours of insecure managers are not checked, either through training and counselling or by removing them as team leaders, they will eventually ruin an organization because good employees will be forced to vote with their feet and leave.

So what can you do if you are unfortunate enough to work for an insecure manager? Stay tuned as this will be discussed in a future post.

June 28, 2012June 27, 2024

BC Teacher Discipline

The Teacher Regulation Branch, which came into being in 2011, regulates educators and has the authority to conduct reviews of teachers and suspend or cancel teaching certificates, if necessary. This was previously handled by the BC College of Teachers, which ceased to exist on January 9, 2012.

As part of its mandate, the Branch will make available to the public, disciplinary decisions made under the Teachers Act. While the Branch has not yet held any disciplinary hearings, discipline decisions made by the College are available on its website.

For a quick overview of the nature of complaints heard by the Branch, see “B.C. teachers disciplined for broad range of misdeeds“.

June 27, 2012June 27, 2024

BC Teachers reach tentative deal with government

The BC Teachers’ Federation reached a tentative deal with the BC Public School Employers’ Association late last night. It is expected that the teachers will vote on the tentative deal on Thursday or Friday of this week. If the deal is accepted, it will end more than a year of labour strife between the teachers and the province and bring some measure of relief up to June 30, 2013.

June 26, 2012June 27, 2024

Temporary Layoffs 101

The Employment Standards Act of BC allows employers to temporarily layoff employees only if the layoff:

Is expressly provided for in the employee’s contract of employment;
Is implied by well-known industry-wide practice (e.g. logging, where work cannot be performed during “break-up”); or
Is agreed to by the employee.

If an employer lays off an employee in situations other than those described above, the layoff would amount to a termination (unless the employee is exempt from the application of the Employment Standards Act).

Where a layoff amounts to a termination of employment, the termination date is the first day of the layoff, and the employee’s entitlement to compensation for length of service is based on that date.

The maximum length of a temporary layoff is 13 weeks in a consecutive 20 week period. The 20 week period begins on the first day of the layoff and the layoff becomes a termination once the 13 week period is exceeded. If an employee earns less than 50% of his/her regular wages in a week that falls within the 20 week period, that week will count towards the 13 week period.

For a unionized employee, a temporary layoff becomes a termination when the recall period set out in the collective agreement is exceeded.

Temporary layoffs are complicated and employers should seek legal advice before taking such action.

June 25, 2012June 27, 2024

Contractual severance and duty to mitigate

Employment contracts often contain termination clauses which stipulate the amount of notice or payment in lieu of notice that an employer will give to an employee in the event he/she is terminated without cause (the “Notice Clause“).

In ~~Bowes v. Goss Power Products Ltd,~~ a very recent decision of the Ontario Court of Appeal, the Court held that a terminated employee has no duty to mitigate where an employment contract contains a Notice Clause and the Notice Clause does not expressly require mitigation.

Facts of the Case

Bowes was the Vice President of Sales and Marketing for Goss Power and worked for Goss Power for approximately 3.5 years when he was terminated without cause. His contract of employment contained a six months Notice Clause that was silent about mitigation. When Goss Power terminated Bowes, the letter of termination that he was given, stated that he would be paid his salary for six months i.e., as a salary continuance, and that he was required to look for alternative employment during this period. When Bowes found alternative employment (within approximately two weeks of being terminated), Goss Power paid him three weeks salary (which was the minimum amount of severance that he was entitled to under the Ontario Employment Standards Act) and stopped the balance of the salary payments. At trial, the judge held that Bowes had a duty to mitigate because the Notice Clause did not expressly state or imply that he was not required to mitigate his losses.

The Court of Appeal set aside the trial judge’s decisions and held that the six months notice was a “contractual right” to a specified amount and that, accordingly, Bowes had no duty to mitigate his loss. As a result, Goss Power was ordered to pay Bowes the amount that he should have received under the Notice Clause, notwithstanding the salary that he was earning from his new employer.

Tips for employers:

Think carefully about how much notice you wish to give an employee when terminating the employment relationship without cause. (Remember that the amount of notice that you give cannot, at any time, be less than the statutory minimum).
Once you decide on the amount of notice, decide whether you wish to give working notice, pay in lieu of notice or a combination of the two.
State the Notice Clause in the employment agreeement in clear, simple, language.
If you want the employee to mitigate his/her losses state this clearly in the Notice Clause.

June 21, 2012June 27, 2024

Work Addicts

Researchers in Norway have developed a new tool, the Bergen Work Addiction Scale, that can determine whether you are simply a hard worker or someone who is addicted to work.

The Bergen scale contains the following statements and if you answer “often” or “always” to at least four of the statements, it would signify that you are a workaholic.

You think of how you can free up more time to work.
You spend much more time working than initially intended.
You work to reduce feelings of guilt, anxiety, helplessness and depression.
You have been told by others to cut down on work without listening to them.
You become stressed if you are prohibited from working.
You de-prioritize hobbies, leisure activities and exercise, because of work.
You work so much it has negatively influenced your health.

The effectiveness of the tool depends on the honesty of the person providing the responses. Consequently, if the person is in denial, the usefulness of the scale as a tool, would be diminished. Used properly, however, the tool can be used to effectively identify workaholics so that they can be helped through counselling and behavioural therapy.

Certain personality traits such as ambition, insecurity, perfectionism and narcissm lend themselves to work addiction and workaholics with such traits can make work life difficult for colleagues and subordinates. Because such people will generally deny that they have a problem and will seek to blame others, this ususally results in stressful and unhealthy work environments. It is therefore important for employers to be aware of these issues and to try and address them before they spiral out of control.

June 19, 2012May 21, 2024

BCTF heading back to court over class size

The BC Teachers’ Federation is going back to the BC Supreme Court to ask the court to restore provisions that would give the teachers the right to bargain class size, class composition and student-teacher ratios. This follows the enactment by the liberal government of Bill 22, a far ranging bill, in response to the BC Supreme Court’s decision in favour of the BCTF in April 2011. While Bill 22 restores the bargaining rights that were in dispute, this will not be effective until 2013.

For background information see ~~Courts Uphold Collective Bargaining Rights for BC Teachers’ Federation.~~

Category: Old Post

Terminating Employees

The Insecure Manager – Part 2

Common law severance

The Insecure Manager

BC Teacher Discipline

BC Teachers reach tentative deal with government

Temporary Layoffs 101

Contractual severance and duty to mitigate

Work Addicts

BCTF heading back to court over class size

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