When is a Resignation not a Resignation?

Posted on by David Goldberg Posted in Resignation

From time to time, emotions can get high in the workplace. Sometimes, this can result in an employee quitting in the middle of a fit or heated exchange.  But what happens when the employee attempt to resile from his or her resignation? A few recent cases have clarified the law on what constitutes a resignation at law.

Case Study – Johal v Simmons da Silva LLP

In Johal v Simmons da Silva LLP, 2016 ONSC 7835, a 62-year-old Plaintiff was employed as a senior family law clerk with the Defendant for 27 years, and she was the primary law clerk to Clark, a lawyer at the firm for the last seven years of her employment.

In June, 2015, Clark informed Johal that another law clerk would be responsible for Johal’s work.  The following day, Johal removed her personal belongings from the office and returned her security pass to Clark.  … Continue reading

Employee vs. Independent Contractor – Assessing the Modern Employment Relationship

Posted on by Brian Jacobson Posted in Workplace Disputes, Independent Contractors

One of the most common issues that arises in workplace disputes is whether an individual is an employee or independent contractor in law. It can be convenient for various reasons (tax, etc.) for employers and individuals to agree on a working arrangement that labels the individual as an independent contractor, but when the working relationship breaks down and the contractor is terminated, the individual could claim he or she is an employee at law, and thus entitled to severance pay. The British Columbia Supreme Court recently applied the “modern approach” to determining whether an employment relationship existed at law in Ventures Corp. v The Cambie Malone’s Corporation, 2016 BCSC 1521.

Case Study

Tim Fernback applied for the position of CFO which had been advertised as an employment opportunity by The Cambie Malone’s Corporation (“CMC”). After being selected for the position, Mr. Fernback proposed a working arrangement whereby he would … Continue reading

Bonus Payments upon Termination – Is it in or out of a Severance Package?

Posted on by David Goldberg Posted in Severance Entitlements, Termination

Bonuses and other forms of incentive compensation often form a significant part of employees’ compensation.  Upon termination, an issue that often arises in determining an employee’s legal entitlements is whether a bonus payment is included or not in a severance package. Under common law, an employee is entitled to all compensation that he or she would have earned during the reasonable notice period. If the employee would have earned a bonus payment during the reasonable notice period, then he or she is entitled to the bonus as part of his or her severance package.

However, many employers have written bonus plans or policies that contain certain terms regarding an employee’s entitlement to a bonus, including upon termination.  In particular, in an attempt to limit liability upon termination, many of these bonus plans or policies contain language stating that an employee must be “actively employed” upon the date of payout … Continue reading

Vacations and Vacation Pay in B.C.

Posted on by Ben Tarnow Posted in Vacation Pay, BC Employment Standards Act

Since the summer months are the common time of the year for employees to take vacation time from work, employers and employees often having questions during this time of year regarding the legal rights and obligations of employers and employees in B.C. as it relates to vacation pay and the scheduling of vacation time.

Here is a list of the most important aspects of vacation pay under the B.C. Employment Standards Act (the “Act”) and under common law:

Vacation Time

Section 57 of the Act provides for the amount of vacation time an employee must be given each year. Employees become entitled to vacation time on the anniversary date of their employment. The amount of vacation entitlement is based on the number of continuous years of service.  An employee who has worked at least 12 consecutive months for an employer becomes entitled to 2 weeks’ vacation time per year. After … Continue reading

Social Media and the Workplace

Posted on by David Goldberg Posted in Workplace Policies, Workplace Disputes, Social Media

A couple of recent decisions have highlighted the emergence of social media issues in the workplace.

In a precedent setting decision, a labour arbitrator in Ontario has found an employer liable for failing to protect its workers from harassment and discrimination relating to customer posts on the employer’s Twitter account (Toronto Transit Commission and ATU, Local 113, 2016 CarswellOnt 10550).

Most Recent Cases

The case arose out the Toronto Transit Commission’s (the “TTC”) Twitter account which it established several years ago to respond to passengers’ questions and concerns.  The union representing the TTC’s workers filed a grievance demanding that the TTC’s Twitter account be permanently shut down.  While the union complained about breaches of employee privacy and the lack of workplace safety, the crux of the union’s complaint was that the Twitter account created a platform for passengers to harass, demean and belittle TTC drivers, fare collectors … Continue reading