Our latest legal update finds us speaking with Workplace and General Labour Lawyer Brandon Hillis of Roper Greyell LLP. He offered insights and analysis on a number of recent developments related to labour law in British Columbia.
Pressed for time? Skip ahead.
S1: Termination Pay for Injured Employees
S2: Increased Budget for Employee Rights Enforcement
S3: Whistleblower Protection
S4: Card Based Union Certification
S5: Childcare Accommodations
S1: Termination Pay for Injured Employees
A BC Employment Standards Tribunal has ruled that an injured BC worker who was off work for more than a year is not entitled to termination pay. The worker had argued that, since foreman duties made up a part of his role, he should be accommodated and brought back in that capacity. The employer countered that this was not a significant portion of his role and that no such accommodation was owed.1
GB: Were you surprised by any aspects of this decision?
BH: The decision isn’t necessarily surprising, because of the exception to the entitlement to termination pay provided for under s. 65(1)(d) of the Employment Standards Act [section 63 does not apply to an employee “employed under an employer contract that is impossible to perform due to an unforeseeable event or circumstances…”]. Where I think the employer here would have potentially more difficulty, and where I would urge employers to be cautious, is that just because you’re successful in an employee standards complaint doesn’t necessarily mean that you’ll be successful in a human rights complaint. In that setting, the employer would need to show that they cannot accommodate the person short of undue hardship. That’s where I would have expected this dispute to have ended up.
GB: So the Human Rights Tribunal would be likely to look at this case through a different lens?
BH: The question at the Employee Standards branch under s. 65(1)(d) is whether it’s impossible for this person to perform his job, where they are primarily going to focus on his the amount of time he was off, as well as whether he has a reasonable prospect of returning to work at any point in the future. At the Human Rights Tribunal the analysis would be more nuanced. It would consider whether the company can accommodate the individual without incurring undue hardship.
Typically, the Tribunal would look to see what other options exist. Could the employer modify his duties and still have him perform productive work? If it was found that the employee can do the type of work they were doing before, or could be accommodated in a way that would allow them to perform productive work, it would be tough for the employer to establish undue hardship.
GB: Obviously ‘undue hardship’ is a very subjective term. What should employers know about their burden in cases like these?
BH: These are highly fact-specific kinds of cases. If an employer simply says that it’s going to be tough to accommodate the individual and doesn’t pay it any further mind, they’re going to get into trouble. What they need to show is that the foreman-type work he can perform isn’t really productive work or that it amounts to a very nominal part of his job.
The tribunals are clear that you can’t just put a person into make-work projects or simply create busy work for them. Usually you’ll look at whether there’s other legitimate, productive work available that the person is qualified to do.
Certainly, you see cases where there are two similar sets of facts and you get two different sets of decisions. It’s very granular, and there’s a lot of discretion involved.
GB: How should employers prepare for a situation like this?
BH: My advice for employers is to keep records of the things you’re doing and the other jobs you’ve considered. Why do they work or not work? It’s better to have those conversations at the outset, rather than two or three years down the road when you’re having the conversation in front of an arbitrator or tribunal member.
S2: Increased Budget for Employee Rights Enforcement
Earlier this year, British Columbia’s Employment Standards Branch was given $11.9 million in new money over three years, a 22% budget increase.2 Proponents of the move say it was necessary in order to deal with a backlog of cases and to restore the branch to its once powerful position.
GB: Why do you think this funding increase is being put in place?
BH: For a long time, the Employee Standards branch has been a very under-resourced entity. As a result, it was very complaint-driven. They’re now trying to get back to being an active and proactive enforcement mechanism. One of the key areas of focus of the NDP government has been labour relations and employee rights and protections, so it’s not surprising.
GB: What impact is the increased budget having on the ground? Is it something employers should be looking at?
BH: It’s certainly something we’ve been making our clients aware of. The Employment Standards branch does have more teeth in terms of investigation and enforcement.
What I’ve noticed in my recent interactions with the branch is a greater willingness to investigate beyond a complaint. I don’t believe that I’ve seen a random audit of a workplace but, in situations where an employee brings a complaint, the branch will use that as a springboard for a wider investigation. Previously they would stay within the four walls of the complaint they received.
GB: When a client runs afoul of this agency, is it often a matter of failing to dot their I’s and cross their T’s? Or have they purposely done something they ought not to have?
BH: One of the challenges with the Employment Standards Act is that there are some very precise requirements that have to be met, which employers end up missing.
One area regards averaging agreements. These essentially allow somebody to work longer hours in a day without incurring overtime. There are a number of extraordinarily specific requirements for an averaging agreement that are highly technical. Whether you’re intentionally offside in that regard or not, that’s going to become an enforcement issue for you.
GB: Should employers proactively hire individuals such as yourself to review their practices and ensure that they’re onside?
BH: It’s always helpful. Much of my day to day at times involves reviewing employer practices and policies for compliance with the Employment Standards Act, particularly around leaves of absence, hours of work, and overtime.
There are times when the branch itself can also be a helpful resource. You can call them and ask them what they think about a particular course of action. If nothing else, it allows you to take their temperature. Sometimes they don’t want to answer, as they’re wary of being seen to be giving legal advice.
On the other hand, you can call the branch twice with the same issue and get two different answers. It can be helpful, but I don’t I don’t think it’s necessarily gospel.
GB: Can businesses rest easy that they won’t regret making a call like that? Could they be voluntarily putting themselves on the agency’s radar?
BH: I’d probably use call blocking.
S3: Whistleblower Protection
BC is expanding the Public Interest Disclosure Act in order to provide better protections to whistleblowers in the health-care industry.3 We discussed the nature of protections in the broader workforce for those who report perceived company wrongdoing.
GB: Does BC have comprehensive legislation that protects whistleblowers across the board?
BH: The Public Interest Disclosure Act has been expanded to workers in the health care sector, but it’s not applicable to private sector employees, at least not yet.
In BC there’s not yet a universal whistleblower protection statute, but whistleblower protection does exist within a patchwork of other laws, including the Criminal Code, Employment Standards Act, the Human Rights Code, and the Workers Compensation Act.
GB: When does confidentiality end and whistleblowing begin?
BH: Employees have a duty of loyalty and confidentiality to their employers, but they’re protected as whistleblowers in cases pertaining to something in the public interest. So what’s weighed is whether the issue is truly in the public interest. As you can imagine, determining that is a very highly fact-specific kind of exercise.
Generally, there’s an expectation that an employee exhausts internal mechanisms before going public.
S4: Card Based Union Certification
In a previous legal update we discussed Bill 10, which allows for union certification without secret ballot in BC, so long as the union obtained sign cards from at least 55% of the proposed bargaining unit.4 Now that this is in place, we discussed its impact.
GB: How is this new law working out in practice?
BH: We’re seeing increased rates of certification, so I think it’s working out exactly as the government intended it to.
GB: Those who were opposed to this law voiced concerns that it would lead to peer pressure or manipulation. Is there any evidence that this has been the case thus far?
BH: I’m not aware of any cases yet where that’s been proven. It’s a concern I’ve heard raised, but I’ve yet to be involved in a case where that’s been substantiated.
GB: What safeguards are in place to prevent such pressure or manipulations from taking place?
BH: I understand that the Labour Board is doing audits of certification applications to ensure that everything is above board and that they have a high degree of confidence in the legitimacy of the program. They’ll do spot checks to ensure that indeed people signed the cards and understood what it meant.
GB: What threshold of evidence would be necessary in order to overturn a union certification?
BH: Frankly, I think you’d have to have smoking gun evidence of manipulation in order to bring that kind of argument. I don’t think the board will accept innuendo or speculation of manipulation, peer pressure, or bullying.
And, of course, in a situation where an employee alleges that they’ve been bullied or peer pressured into signing a card, they would actually have to stand up there and give that evidence, which is a difficult thing to ask an individual to do.
Certainly, in my career I’ve seen countless occasions where an employee is quite willing to tell their manager about employee misconduct on a confidential basis. When it comes time to formalize this evidence, these employees become a lot less interested.
GB: You may wind up sitting alone at the company Christmas party.
BH: Exactly, and that’s a very real concern that a lot of employers have. I think that the secret ballot provides people with an easy way to decide whether or not they want to be part of a union, completely free from concern. Imagine a 19-year-old employee who’s just started a job when a couple of guys in union hoodies show up asking them to sign a card. Are they going to say no?
S5: Childcare Accommodations
A recent BC Court of Appeal decision found that employees can qualify for workplace accommodation when any condition of their employment has an adverse effect on an important parental duty.5 Previously, they could only do so when the adverse effect was the result of a change in condition of employment. As Hillis was involved in the case, he was able to provide keen insight on its potential future application.
GB: What does this ruling mean for employers and employees?
BH: Our interpretation of the test used to be that in order to have those care obligations be accommodated, there had to have been a change in a term or a condition of employment that led to that interference. An example would be a change in hours, which prevented you from looking after your child or parent. The recent ruling clarified that that threshold is not there. But what does need to be present is a serious interference with a significant care obligation. This is likely to lead to more issues arising in the future.
GB: Can you provide any clarity about ‘serious interference with a significant care obligation’?
BH: They’re going to look at the family relationship and the obligation at stake. What’s the level of interference? If there’s a new child at home that has a serious medical issue that nobody else can look after, then maybe you get there. On the other hand, the fact that daycare is expensive or that you’d really like to go to your kid’s soccer practice is not likely to meet those requirements.
The worry that we had in our court case was that anytime there was any sort of interference, you’ve got an interference, which would have been pretty chaotic for employers. We were able to get the court to buttress that it must be serious and substantial requirements. The court spoke strongly about the importance of those requirements by warning that watering it down would trivialize the ground. It won’t apply to your second cousin twice removed having a piano recital.
Cited Sources
1 Smith, Jeffrey R. “Injured BC Worker’s Claim for Esa Termination Pay Fails.” HRD Canada, June 5, 2023. https://www.hcamag.com/ca/specialization/employment-law/injured-bc-workers-claim-for-esa-termination-pay-fails/448202.
2 Initiative, The Local Journalism, and The Tyee Zak Vescera. “B.C. Promises $11m Boost for Employee Rights Enforcement.” Vancouver Island, February 27, 2023. https://vancouverisland.ctvnews.ca/b-c-promises-11m-boost-for-employee-rights-enforcement-1.6291689.
3 Wilson, Jim. “B.C. Boosts Whistleblower Protections for Health-Care Workers.” Canadian HR Reporter, June 5, 2023. https://www.hrreporter.com/focus-areas/employment-law/bc-boosts-whistleblower-protections-for-health-care-workers/376483
4 Bill 10 labour relations code amendment act, 2022. https://www.leg.bc.ca/content/data%20-%20ldp/Pages/42nd3rd/1st_read/PDF/gov10-1.pdf5 Chiang, Chuck. “B.C. Court Decision a ‘significant Win’ for Parental Rights, Commissioner Says.” The Globe and Mail, April 24, 2023. https://www.theglobeandmail.com/canada/british-columbia/article-bc-court-decision-a-significant-win-for-parental-rights-commissioner/
