As we ring in the new year and return to the office after the holiday season, we wanted to reflect on some notable developments in employment law in 2022.
Notable cases in Employment Law: dismissals
2022 started off strong with the Supreme Court of British Columbia’s (the “BCSC”) decision of Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112. There, the Court found that an employee’s surreptitious recording of their fellow employees was cause for dismissal. Specifically, the Court found that these recordings break down the relationship of trust that is necessary between an employer and that employee. We understand this decision is under appeal and there may be more to come on this issue in 2023. For more information about the trial decision, please see our article.
The BCSC also re-affirmed the 24 month cap on reasonable notice damages in Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881. There, the plaintiff was seeking wrongful dismissal damages based on a reasonable notice period of 24-26 months. The Court re-affirmed that absent truly exceptional circumstances, reasonable notice remains capped at 24 months in British Columbia. Being an older, longer service employee alone was not enough to constitute “exceptional circumstances.” More information about this decision can found in our article.
More to come: the first pandemic cases make their way through the courts
In 2022, we began to see COVID-19 pandemic cases work their way through the courts. While the majority of decisions related to vaccination policies were decided in the labour arbitration context, 2022 saw the first court case to consider a COVID-19 vaccination policy in Parmar v Tribe Management Inc., 2022 BCSC 1675. This was the first time the courts considered the issue of whether it amounts to a constructive dismissal to place an employee on unpaid leave for non-compliance with a mandatory vaccination policy. In this case, the BCSC found that it was not a constructive dismissal. The employer was entitled to place an employee on an unpaid leave of absence for failing to comply with the employer’s mandatory vaccination policy. We have provided a more detailed summary of this decision here.
The issue of how to account for CERB payments in the context of wrongful dismissal damages was at issue in a number of conflicting decisions across Canada. In late 2022, the British Columbia Court of Appeal resolved the matter in British Columbia by ultimately confirming in Yates v. Langley Motor Sport Centre Limited, 2022 BCCA 398 that CERB payments are not deductible from wrongful dismissal damages awards. Specifically, the Court found that broader policy considerations and the purpose of the CERB program support the conclusion that these payments should not be deducted from damages awards.
We expect more COVID-related decisions to make their way through the courts in 2023 and will be closely monitoring for further notable decisions to come.
There were also a number of legislative changes that took effect in 2022, including for the first time statutory requirements for paid sick leave.
In British Columbia, the government modified the Employment Standards Act to include five paid days off for personal illness or injury, starting on January 1, 2022.
Similar provisions for paid medical leave came into effect federally under the Canada Labour Code. The changes, which were announced back in December 2021 but just came into force on December 1, 2022, provide three days of paid medical leave to all federally regulated employees with 30 days of continuous service with their employer. Employees will receive an additional day of paid medical leave per additional month of service, to a maximum annual entitlement of ten days.
Finally, Ontario also introduced a first-of-its-kind legislation with the Working for Workers Act, which modified Ontario’s Employment Standards Act to require any workplace with 25 or more employees to have a written policy on disconnecting from work by June 2, 2022. While this law does not affect British Columbia’s employers, and British Columbia’s government has no plans to follow the Ontario legislation at this time, it is nevertheless a notable legislative development from the past year.
If you have any questions on any issue discussed in this article, please contact your Harris lawyer. We look forward to continuing to serve you through 2023.