The Supreme Court of British Columbia has decided there is no common law tort of invasion of privacy in BC. This is in contrast to an earlier decision in Ontario that we wrote about here.

You can read more about the BC decision in this post on our  snIP/ITs blog:

BC vs Ontario: BC Supreme Court Confirms No Common Law Tort for Invasion of Privacy

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There was a job opportunity for the terminated employee.  He didn’t pursue it and he didn’t provide a reasonable excuse.  His claim for wrongful dismissal damages was denied.

Rod Koenig had been hired by Brandt Tractor in 1987 and was terminated 22 years later.  He was given 9.5 months of working notice in January 2009, finished work in October 2009 and didn’t start new employment until April 2010.

But in June 2009 he was approached by a former work colleague, Mr. Jones, about a comparable position.  Mr. Koenig expressed no interest and did not pursue the opportunity.  Mr. Jones considered him to be ideal for the position and would have hired him if he was interested.

Brandt Tractor claimed that Mr. Koenig failed in his duty to mitigate.  He responded by swearing in an affidavit that he had reservations about working with Mr. Jones and referred to billing practices he didn’t approve of.  Brandt Tractor responded with affidavit evidence from Mr. Jones and from the Branch Manager for whom both Jones and Koenig had worked.

The decision makes it clear that a former employee cannot be forced to work where he prefers not to work, but when is seeking damages from his former employer he has a duty to mitigate.  That means:

he must act reasonably and take reasonable steps to maintain his income, and

there must be a “constant and assiduous application for alterntive employment”.

The judge concluded:

The evidence before the court of the plaintiff’s reason is no more than a vague “disapproval” of Mr. Jones’ billing practices.  Mr. Jones was highly regarded by the Branch Manager.  Mr. Koenig does not allege dishonesty.  He simply “had reservatons” about working with him.  On the evidence I conclude Mr. Koenig did not act reasonably when he decided not to pursue employment at Freightliner.  Put another way, the evidence establishes that Mr. Koenig failed to mitigate his losses.

This failure to mitigate is fatal to the plaintiff’s case.  If he had taken the job, as he reasonably should have, then he would have suffered no loss of income.

The claim was dismissed with costs awarded to Brandt Tractor.

See: Koenig v. Brandt Tractor Ltd.

The long awaited DSM-5 has arrived and the controversy rages. Meanwhile, no matter what employers may think about the changes, they have no choice but to deal with the inevitable fallout.

DSM-5 is the “Diagnostic and Statistical Manual of Mental Disorders” as newly revised from the previous DSM-IV. It was formally introduced this week by the American Psychiatric Association and it becomes the authoritative source in North America for diagnosing mental disorders. (An earlier post talked about some of the controversy in the making of DSM-5.)

Why is it important to employers in BC?

First – it is authoritative – for psychiatrists and psychologists, for insurers, and for WorkSafeBC.

Whether or not individual professionals agree or disagree with all or any aspect of DSM-5, they will use it for at least two reasons: DSM-5 is established as the governing authority for determination of mental disorders under the Worker’s Compensation Act; and for now, there is no other alternative on which a credible diagnosis can be made so it likely will be relied on to determine if there is a “mental disability”, and to set the scope of the duty to accommodate, in human rights law.

Second – it recognizes new mental disorders, and changes the criteria for some existing disorders.

Of particular interest for employers are new disorders such as Caffeine Withdrawal, Cannabis Withdrawal, Mild Neurocognitive Disorder and Premenstrual Dysphoric Disorder, and treating extended grief over the loss of a loved one as depression.

Third – all of that likely will lead to increased costs for sick leave, disability insurance and drug plans.

The concern is that the changes will accelerate the diagnoses of mental disorders. That will justify more sick leave and more disability leave and the use of medication as treatment. That will drive up employer costs for the benefits plans commonly provided.

You can read a summary of the main criticisms of DSM-5. But of course, there are always at least two sides to every story and there is strong support as well.

Does DSM-5 medicalize normal human emotions and behaviour to our detriment, or does it gather advances in psychiatric knowledge and enable previously uncategorized problems to be recognized, studied and effectively treated?

It’s an interesting debate and worth following. But whatever employers may think, DSM-5 will have an impact in the workplace.

Our Federal Court has dismissed a court challenge by two unions against HD Mining.  The unions claimed that the company hired more than 200 temporary Chinese workers for its coal mine in Tumbler Ridge in northeastern BC, while deliberately ignoring or passing over many qualified and willing Canadian applicants.

The International Union of Operating Engineers, Local 115, and the Construction and Specialized Workers Union claimed that HD Mining obtained labour market opinions (“LMOs”) to bring about 200 temporary foreign workers from China, after rejecting multiple Canadian applicants with exemplary qualifications.  The company claimed that there was a lack of expertise for the type of mining operation planned for the mine, namely “long-wall mining”, a technique that is not used in many, if any, existing Canadian mines.

The Court vindicated the company and Service Canada, which granted the LMOs, finding that there was nothing to support the unions’ allegations and that Service Canada’s decision to grant the LMOs was reasonable.  Unfortunately, the unsupported allegations did bear fruit for the unions.  Due to the public outcry, which was exacerbated by the Royal Bank IT temporary foreign worker controversy, the Federal government made a number of changes to the temporary foreign worker programs.  No matter that the company was put to months of litigation, expense and negative publicly, the unions’ own political agenda was well served.  I am not surprised that the unions would make unfounded allegations.  My concern is how easily the unions were able to manipulate the public perception and debate about important economic issues and policy on the basis of their unfounded allegations.

For more, visit:

CBC’s report:  http://www.cbc.ca/news/business/story/2013/05/21/bc-temporary-workers-hd-mining.html

Read more about the temporary foreign workers case

The Federal Court of Canada’s decision: http://cas-ncr-nter03.cas-satj.gc.ca/rss/IMM-11316-12%20EN.pdf

If an employee views a confidential file contrary to clear and reasonable policy, she can be fired for cause.  That was the judgment of the BC Supreme Court in Steel v. Coast Capital Savings Credit Union  2013 BCSC 527.

 The Plaintiff, Ms. Steel, was a help desk analyst in the IT department of the Defendant Coast Capital Savings.  In her job, she was able to access any document or file in the organization.  Her work was mostly unsupervised.

Included in her job description and protocols relating to document access were clear statements requiring that privacy of staff information be respected.  Help desk employees had to specifically obtain permission before accessing other employee’s personal folders online.

Ms. Steel was caught accessing a document in a manager’s confidential folder about parking space assignments for employees.

The Court noted that Ms. Steel occupied a position of great trust in an industry in which trust is of essential importance.  She violated that trust by opening a confidential document for her own purposes, and by violating the protocols that were to govern such document access.  In the circumstances, this was found to be just cause for dismissal.

The existence of a clear protocol was key to the finding that there was just cause.  Accordingly, employers who wish to protect confidential information online should implement clear protocols governing access, setting out consequences for breach.

The BC Ambulance Service failed in its duty to accommodate a paramedic who could no longer palpate a pulse because of his mulitple sclerosis.  The employee’s manager was also held personally responsible.

That was the decision of the BC Human Rights Tribunal after the employer had won an earlier case on judicial review.  We reported on the judicial review in an earlier post because it established the important principle that the duty to accommodate does not include an independent procedural duty.  The matter was sent back to the Tribunal to reconsider, and with that second look, the result is worse for the employer and the manager.

The Tribunal determined that the disabled employee could have been accommodated as a “Driver Only” and “Special Driver Only” without undue hardship.  Even though the Ambulance Service seeks to have both paramedics in each ambulance to be fully qualified, the fact is that there are 135 “Drivers Only” out of 2,500 part timers.  The Tribunal noted the lack of evidence to show actual harm arising from not having both paramedics being able to palpate a pulse and concluded the addition of one Driver Only to an existing complement of 135 was statistically insignificant.

The case is also worthy of note for the finding against the manager.  Many human rights complaints name both the employer and individual managers, but there are relatively few cases where individuals are found liable.

In this case, the manager was found to have actively thwarted efforts to find an accommodation and to have deliberately sought to prevent Cassidy from returning to work.  The Tribunal commented more than once that the manager did not do the things expected of management when it is necessary to consider accommodation under the Human Rights Code.

Therein lies the good news for managers:  If you approach accommodation issues objectively and neutrally, and apply a reasonable effort to the task, you are unlikely to be held personally responsible.

Telecommuting may be on the way out at Yahoo! but it is very much alive elsewhere.  So if you have employees who are working from home, or if you are considering it,  you should think through the employment issues.

The first question is:   Do you have a written agreement to set out the telecommuting rules?  If not, you need one.

The next question is:  What does the telecommuting agreement need to address?  Here is a list of some issues to consider:

• How do you monitor and manage hours of work?   Unless you fit into one of the exemptions in the BC Employment Standards Regulation, you will be liable for all hours that the employee works, or is allowed to work, at home.  See our post about overtime for more information.
• How do you meet your obligation to provide a safe workplace?  The kids’ toys scattered around the floor of the home “office” may be a workplace hazard.  The employee needs to provide assurances about how the home office will be furnished and maintained and the employer needs to have the ability to check it out from time to time.  The employee also needs to commit to report any workplace injury.
• How do you protect confidential, proprietary or personal information?  The agreement needs to address how paper files are to be handled and stored, how computers are to be used and secured, and how communications are to be protected.
• Who supplies, owns and maintains the required equipment and supplies?  Be clear about who pays for what, and whether or not there is to be any compensation for use of the employee’s personal property.
• What insurance is required and do the employer’s insurance policies impose any conditions or restrictions on employees working from home?  Review existing policies and consider what extra insurance is required and who pays for it.
• Do you need the employee to report to the regular place of work at certain times or on request? Such obligations should be explicitly stated.
• Finally, in case your new CEO wants to do a Yahoo!, make sure your agreement allows for amendment or termination of the telecommuting arrangement at any time.

The telecommuting or “working from home” agreement is important but it need not be complicated.  One or two pages can help provide some certainty and manageability in a variety of circumstances.

A BC employer has successfully defended a claim for constructive dismissal despite taking away supervisory duties and moving the employee from an office to a cubicle.  The Meyers v. Chevron Canada Limited case  is a welcome change from earlier cases we have discussed here (changing a bonus) and here (abusive workplace environment).

Meyers worked for Chevron in a number of positions since 1994. Some of the job changes were considered promotions while others were lateral moves, but he agreed to all of them. The last move was to a Business Analyst position when his former department was eliminated. He no longer supervised other employees and was not responsible for an operational budget.  He took it as a demotion, resigned, and sued for constructive dismissal.

The Court decided there was not a “dramatic qualitative change“ in duties such that it could be considered a fundamental breach of the employment contract, noting that he retained significant leadership responsibilities as a project manager and responsibility for the projects budget. The Court also noted it may have been subjectively demeaning for Mr. Meyers to be moved from an office into a cubicle, but it was not objectively humiliating and degrading conduct.

The Court noted that an employer “requires some latitude to structure the affairs of its operation” and held that the parties had not intended the plaintiff’s management responsibilities to be rigidly defined. Mr. Meyers was “hasty” to resign before seeing whether the new position was an effective demotion.

Employers always have to be careful about making unilateral changes to terms of employment.  But this decision suggests that courts will take a close look at the actual job duties and the objective reality, not just the subjective perception, of the changes.  We can also hope that the courts will be reluctant to interfere with legitimate reorganizations of a company’s operations and only act on changes which truly go to the root of the employment contract.