This award sets a valuable precedent, as it is one of the few decisions in which an arbitrator has awarded damages for injury to dignity under the Human Rights Code.

Unions should be aware of the possibility of requesting these types of damages in cases involving human rights violations and consider putting the employer on notice that they will do so. They may also want to obtain medical evidence to support the claim in order to maximize the damages awarded.

On September 7, 2007, Arbitrator Hall ordered the College to reinstate Dr. Fu as a probationary instructor, conditional upon him providing a certificate of medical fitness, as he found the College had discriminated against Dr. Fu when it terminated him. The award rejected the Association’s claim that Dr. Fu was entitled to damages for mental distress. However, the Arbitrator remitted the issue of other damages back to the parties to try to settle.

The parties were unable to settle the issues of damages and made submissions to Arbitrator Hall regarding two issues: 1) general damages; and 2) damages for injury to dignity.

Regarding the first point, the Association argued that the basic purpose of a damages award is to put the aggrieved party in the position they would have been in had there been no breach of the collective agreement, provided the loss was “reasonably foreseeable”, the aggrieved party acted reasonably to mitigate the loss and the damages must be certain and not speculative. Therefore, the Union took the position that Dr. Fu was entitled to lost wages for the period from termination to reinstatement.

The College took the position that damages were too remote in this case because it alleged that there was a real and substantial likelihood that Dr. Fu would not have successfully completed probation, even if he had not experienced a period of disability.

Arbitrator Hall rejected the College’s position and stated that “it cannot be said reliably, let alone on the balance of probabilities, that Dr. Fu would not have passed probation had he been properly accommodated when the College was first informed of his diagnosis.” Therefore, he awarded that the College pay the lost wages to Dr. Fu.

Regarding the second point, the Union argued that section 37(2)(d)(iii) of the Human Rights Code grants the discretionary power to award compensation for injury to dignity, feelings and/or self respect. Further, the Union took the position that section 89(g) of the Labour Relations Code permits arbitrators to “interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement”, which includes the Human Rights Code.

The College argued that the arbitrator had no jurisdiction to order this remedy because the Legislature had confined such authority to a “member or panel” of the Human Rights Tribunal. In the alternative, the College argued that Dr. Fu had not suffered any injury to dignity, feeling and/or self respect.

The Arbitrator agreed that he had the jurisdiction to award damages under the Human Rights Code and relied on evidence produced at the termination arbitration to find that there had been injury to dignity, feeling and/or self respect. Thus, he ordered the College to pay $3,500.00 to Dr. Fu for damages for injury to dignity.

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Tagged: Human, Rights, Damages

The Union won a major victory for its members with this decision when the Human Rights Tribunal found that members who were on Long Term Disability were terminated mere months before a mill closed down because Weyerhaeuser wanted to avoid paying them the severance payments they were entitled to under the collective agreement.

The United Steel-Workers, Local 1-423, filed a representative complaint on behalf of four of its members, alleging that Weyerhaeuser discriminated against them with respect to their employment, on the basis of mental and physical disability, contrary to s. 13 of the Human Rights Code.

The members worked at the Okanagan Falls Mill and, in April 2007, each of them had been in receipt of LTD benefits for periods ranging from four months to approximately 13 years. On April 9, 2007, all of these members received a form letter advising them that their employment with Weyerhaeuser was terminated on the basis of non-culpable absenteeism, effective June 15, 2007.

On September 17, 2007, Weyerhaeuser announced the permanent closure of OK Falls, effective December 17, 2007. The collective agreement provided that severance pay would be paid to employees terminated because of a permanent closure. However, due to their termination on June 15, 2007, the four members on LTD were not employees and did not receive severance.

The Union alleged that Weyerhaeuser terminated the members’ employment to avoid paying them severance, and it thus discriminated against them. Weyerhaeuser essentially argued that this was a coincidence, as it was just implementing a new policy and the OK Falls managers were not aware of the closure at the time the members’ employment was terminated.

The Human Rights Tribunal agreed with the Union and declared that Weyerhaeuser’s conduct, in rushing to terminate the members’ employment before the closure of OK Falls and thus avoiding paying severance, was discrimination, contrary to s. 13 of the Code.

The Tribunal further made the following orders:

-          Pursuant to s. 37(2)(2)(i) Weyerhaeuser is ordered to reinstate the Members to the employment status they had as of the date of their termination, June 15, 2007, and to credit the Members with the seniority they would have earned from June 15, 2007 until December 17, 2007, when they would have been entitled to severance under the Collective Agreement.

-          Pursuant to s. 37(2)(d)(ii) Weyerhaeuser is ordered to pay to the Members severance calculated as per the Collective Agreement, using the seniority date established under the seniority order above.

-          Pursuant to s. 37(2)(d)(iii) Weyerhaeuser is ordered to pay award for injury to the dignity, feelings and self respect of Mr. W, the amount of $20,000.00; Mr. I, the amount of $16,000.00; Mr. C, the amount of $14,000.00; and Ms. S, the amount of $5,000.00.

-          Finally, Weyerhaeuser is ordered to pay pre-judgement interest in accordance with the Court Order Interest Act, R.S.B.C. 1996, c. 79 as amended, on the severance payments, running from December 17, 2007, and post-judgment interest on this and all other amounts ordered.

Tagged: Human, Rights, Severance

In an arbitration award originally dated July 6, 2009 (reissued with corrections on November 26, 2009), Arbitrator Steeves upheld the Union’s grievance which claimed that full-time warehouse employees were entitled to an additional premium when working more than 29 hours in a week in which a holiday falls.

The Union successfully argued that, when a general/statutory holiday occurs, full-time employees are entitled to be paid overtime for any time worked beyond the 29-hour “basic work week” that applies to a general holiday week, and that this did not amount to “pyramiding benefits”, as argued by the employer.

The victory ensures that when there is a general/statutory holiday, full-time warehouse employees who work beyond the 29-hour basic work week are entitled to the following:

-          Straight time pay for all hours worked during that week which do not include hours worked on the general/statutory holiday itself and which are not in excess of 29 hours; PLUS

-          Straight time of 8 hours for the general/statutory holiday; PLUS

-          Double time for any hours worked on the general/statutory holiday; PLUS

-          Double time for any hours worked in excess on 29 hours in the week that the general/statutory holiday falls.

The Employer filed a section 99 application with the Labour Relations Board. In November 2009, the Board dismissed the Employer’s application (Decision BCLRB No. B208/2009 at http://www.lrb.bc.ca/decisions/B208$2009.pdf) (it did remit an estoppel issue back to the Arbitrator, who then released the November 26, 2009 decision in the Union’s favour).

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Tagged: Statutory, Holidays, Overtime

The Construction and Specialized Workers’ Union, Local 1611 knew it would be an uphill battle when they filed a human rights complaint on behalf of the temporary foreign workers from Central and South America who were employed by SELI Canada et al. to help bore the Canada Line tunnel. The complaint alleged that the Latin American workers were being paid far less than the Europeans who were doing the same jobs, and that their living conditions were worse simply because they were Latin Americans.

The hearing rapidly became even more of a quagmire than expected. Once scheduled for one week, it turned into a 24-day hearing over an eight-month period, with the parties calling 29 witnesses (five of them twice). In the end, there were 11 written decisions, along with several oral ones. As the Tribunal stated: “The hearing was sometimes highly contentious, which added to the length and difficulty of the proceedings.”

Ultimately, in C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436, the Tribunal held that the Union had established that the Latin American employees were discriminated against on the basis of race, colour, ancestry and place of origin, contrary to s. 13 of the Code and that there was no justification for this. The Tribunal then ordered SELI to pay the Latin Americans the difference between the gross salary paid to them and to the average European. As well, it ordered $10,000 in damages for injury to dignity to each worker, as well as pre- and post-judgment interest. Damages are estimated as amounting to $2.3 million.

The Human Rights Tribunal determined that the Latin American workers had been adversely treated, compared to European workers, in their pay, their accommodation, their meal arrangements, and their arrangements for expense reimbursements.

The Tribunal further found that the race, colour, ancestry and place of origin were factors in their adverse treatment. While SELI argued that the differences were based on objective facts about the different countries of origin, meaning the different wages in different countries’ labour markets, the Tribunal found that this was not the primary basis used to determine wages. In any event, paying people who do the same work differently simply because they are from countries from different wage rates is discriminatory.

The Tribunal also rejected SELI’s argument that differences in skills, duties and experiences between Latin Americans and Europeans accounted for their different terms and conditions of employment. In some cases, the Latin Americans were being paid far less to do more difficult jobs.

Moreover, the evidence made clear that SELI itself viewed Latin Americans differently. Their treatment of Latin Americans in respect of accommodations, meals and expenses reflected arbitrary and stereotypical thinking about Latin Americans and Europeans, and their respective needs and desires and impaired their human dignity. The Latin Americans were especially vulnerable, and the Employer treated them worse than Europeans simply because of who they were and where they were from.

The Tribunal concluded that SELI’s international compensation practices were not a justification for the discrimination. In effect, the application of SELI’s international compensation practices to Latin Americans employed by them on the Canada Line project was to take advantage of the existing disadvantaged position of these workers, who are from poorer countries, and to perpetuate that disadvantage, and to do so while they were living and working within the province of British Columbia. This was contrary to the purposes of the Code and unjustifiable.

A judicial review application was filed and commenced in the Supreme Court of British Columbia on January 25, 2010. A preliminary matter was argued and the case has been adjourned sine die.

New Regulations Purporting to Protect Foreign Workers

In October of 2009, the federal government introduced amendments to the regulations under the Immigration and Refugee Protection Act (“IRPA”), which preclude exploitative employers from bringing more foreign workers into Canada. However, the new amendments neglect to provide superior compliance or enforcement.

The Regulatory Impact Analysis Statement (http://www.gazette.gc.ca/rp-pr/p1/2009/2009-10-10/html/reg1-eng.html) summarizes the amendments as follows:

Sections of the Immigration and Refugee Protection Regulations (IRPR) dealing with the entry of Temporary Foreign Workers (TFWs) would be amended to clarify the process for and establish factors to be considered in assessing the genuineness of all offers of employment. Another key change to the Regulations would allow for the restriction of an employer’s eligibility to access the TFWP for two years where the employer, at the time of application or request, has been found to have provided significantly different wages, working conditions or the occupation offered. A list of ineligible employers would be made available on Citizenship and Immigration Canada’s (CIC) external Web site. Amendments would also establish a maximum cumulative duration of four years of work, followed by a period of at least six years not working in Canada, with exemptions under certain circumstances; and require that Human Resources and Skills Development Canada’s (HRSDC) Labour Market Opinion (LMO) indicate a time period during which it is in effect.

The three stated objectives of the regulatory changes are:

1. Minimize the potential for TFW exploitation by employers and third-party agents, thereby better protecting TFWs who work in Canada;

2. Implement stricter employer monitoring mechanisms, including a denial-of-service provision, thereby encouraging greater adherence by employers to the terms of their offers of employment with respect to wages, working conditions, and occupations; and

3. Underline that employment facilitated through the TFWP is meant to be temporary in nature.

However, these regulatory changes fail to adopt many of the key recommendations made in the Report of Parliament’s Standing Committee on Citizenship and Immigration entitled “Temporary Foreign Workers and Non-Status Workers” (released in May 2009) (http://www2.parl.gc.ca/content/hoc/Committee/402/CIMM/Reports/RP3866154/cimmrp07/cimmrp07-e.pdf) .

For example, the Committee's Report recommended that the Government execute procedures to make information available to foreign workers regarding their rights (both before coming to Canada and once they are here). As well, it recommended that the Government use the existing provisions in the Criminal Code and the IRPA to prosecute employers who violate the law.

In addition, the Committee advocated for an increase in the rights of temporary foreign workers to access social programs in Canada (access to Employment Insurance benefits, social assistance, health care and et cetera). The Committee specifically noted that even when foreign workers are eligible for these programs, there are frequently barriers to access, including lack of knowledge about entitlement.

Moreover, the Committee recommended that the Government should implement a process whereby temporary foreign workers can obtain citizenship. This would be modeled on that process that is already in place for foreign workers in the live-in caregiver program.

The key criticism of the changes is to be that the effect of their effects, particularly the four-year limit on remaining in the country, will augment the vulnerability of foreign workers in Canada. Whether these regulatory changes will serve to support the rights of temporary foreign workers or marginalize them even more remains to be seen. However, it is clear that foreign workers need to be provided with more information about their rights, particularly their basic human rights that are protected by Canadian legislation.

Unions can play a key role in helping to protect these workers by organizing them and filing grievances or human rights complaint.

For example, in C.S.W.U. Local 1611 v. SELI Canada and others (No. 8), 2008 BCHRT 436, the Construction and Specialized Workers’ Union, Local 1611 filed a human rights complaint on behalf of the temporary foreign workers from Central and South America who were employed by SELI Canada et al. to help excavate the Canada Line tunnel. The Union successfully argued that the Latin American employees were discriminated against on the basis of race, colour, ancestry and place of origin, contrary to s. 13 of the Code and that there was no justification for this.

The Tribunal then ordered SELI to pay the Latin Americans the difference between the gross salary paid to them and to the average European. As well, it ordered $10,000 in damages for injury to dignity to each worker, as well as pre- and post-judgment interest.

Note that a judicial review application was filed and commenced in the Supreme Court of British Columbia on January 25, 2010. A preliminary matter was argued and the case has been adjourned sine die.

Tagged: Foreign, Workers, Wage, Discrimination

In 2008, the Union became aware of the Employer’s ongoing practice of enrolling “casual” employees (as they were categorized in the collective agreement) solely under one of the two tests set out in the Pension Plan.

In the collective agreement, BDL distinguishes “regular” employees (also known as “core” employees) from “casual” employees, the primary distinction being their length of service. However, “casual” employees work alongside “regular” employees under the same job classifications, performing the same duties, under the same Collective Agreement, as members of the same trade union.

The Union filed a grievance dated December 11, 2008, and it also wrote to the Superintendent of Pensions to determine the matter. The issue to be decided was whether “casual” employees are eligible for enrollment under the terms of the Plan if they meet either of the following two criteria:

1. Completed two years of continuous employment with earnings of not less than 35% of YMPE; or

2. Following 132 days of work on a full-time basis in a 12 month period.

The Employer’s position relied on the collective agreement language and was that the 132 days worked in 12 months test only applied to “regular” employees, while the 35% YMPE in two years test only applied to “casual” employees.

The Union’s position was that it was the Plan language and not the Collective Agreement language that should govern the matter of eligibility for enrolment in the Plan.

The Superintendent of Pensions held that the Union’s interpretation was correct and directed the Plan administrator to accept any employees who meet either of the Plan criteria as members of the Plan without regard to any distinction between employees as “casuals” or “regulars”.

This decision will be reviewed, as the Employer has filed a “Notice of Objection” under the Pension Benefits Standards Act.

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Tagged: Pensions

The BWU argued and won an important case regarding collective agreement interpretation and benefits that can constitute an “amenity”.

On April 3, 2009, Molson Canada served notice that it intended to unilaterally modify (and with respect to pensioners, eventually eliminate) the take-home beer allotment and Special Events Beer entitlement, and purported to outright eliminate the Retirement Bonuses and Christmas vouchers. This was scheduled to take effect on January 1, 2010.

The Union filed a grievance, arguing that this unilateral modification was contrary to Article 9(1)(b) of the collective agreement, which stated, in part, that “all present amenities, now enjoyed by the employees, shall be kept in force.” The Employer countered that these were not “amenities” but were akin to gratuitous benefits.

On January 14, 2010, Arbitrator Diebolt released his decision, finding in the favour of the Union on all matters except the retiree beer allowance and Christmas voucher, as they pertained to retirees, who he determined were not “employees” under the Collective Agreement).

This important victory enhances the law surrounding the interpretation of “amenities” (and, by analogy, similar wording) and should make employers pause before making unilateral decisions regarding benefits without first considering their contractual obligations under broad amenity-type provisions in collective agreements. 

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Tagged: Collective, Bargaining, Amenities

Managing Medical Meddling: Considerations When an Employer asks for an Independent Medical Examination

Introduction

There are several contexts where employers may request an employee to undergo an Independent Medical Examination (“IME”), including: a) taking or returning from a leave of absence for medical reasons; b) disability accommodation; c) entitlement to particular benefits; d) psychological concerns about the employee (where they place themselves or others at risk); and e) an arbitration or human rights hearing where the employee’s medical condition is directly at issue.   While it is not always clear when a demand for an IME will be justified absent some statutory authority or contractual obligation, a recent Federal Court decision stated that an employer will only be entitled to require an IME in “exceptional and clear circumstances” (Canada (Attorney General) v. Grover, [2007] FCJ No. 58).

Each determination of when it is appropriate for an employer to request an IME requires careful balancing of the facts and interests of the parties. While this makes it is impossible to provide a concrete summary of situations where this may be appropriate, adjudicators have provided some guidelines to assist with the assessment.

Principles

The starting point is that the employee obviously has a high interest in protecting his privacy and requiring an IME is seen as a significant intrusion into the privacy rights of an employee (Overwaitea Food Group v. United Food and Commercial Workers Union, Local 1518 (Wright Grievance), [2003] B.C.C.A.A.A. No. 311 (Burke)).

Furthermore, there is a higher degree of privacy when mental health issues are involved. As one arbitrator commented: “By their nature, these types of inquires may reveal the most intimate details of a person’s innermost private life” (Oliver Paipoonge (Municipality) and Labourers' International Union of North America, Local 607 (Koutny Grievance) (1999), 79 L.A.C. (4^th) 241 (Whitaker)).

Therefore, any privacy intrusions need to be carefully weighed against the employer’s interests and obligations, which will almost always involve health and/or safety issues. Some of the relevant considerations will include the following (see Colin Taylor, “Privacy and Medical Examinations in the Arbitral Context” (Paper presented at the Labour Arbitration – 2005 Continuing Legal Education Society of British Columbia Conference, June 2005) for more discussion on these points):

1. The sufficiency of the existing information;
   
2. The other means of information available;
   
3. The nature and extent of the grievor’s illness or disability;
   
4. The grievor’s history;
   
5. The nature of the grievor’s work; and
   
6. The risk the grievor’s condition may pose to the employer’s operation, his or her own safety, and/or the safety of others.
   

This issue most frequently arises in the contexts of return-to-work situations, where accommodation may or may not be necessary, and where at-work conduct is such that it brings into question the employee’s ability to safely perform his duties. There is a higher onus on the employer to justify a request for at-work conduct because the employee is assumed to be fit, unlike an employee returning to work after a medical leave (Proboard Ltd. v. Communication, Energy and Paperworkers' Union, Local 49-0 (Fredrickson) (2001), 97 L.A.C. (4^th) 271 (Burkett)).

Regardless of the context, the employer must first pursue all reasonably available measures that are less intrusive than an IME before requesting one from the employee (Public Service Employee Relations Commission and British Columbia Government & Service Employees' Union (Teixeira Grievance) (1997), 72 L.A.C. (4^th) 309 (Jackson)).

This obviously begins with first directing further inquires to the employee’s treating physician. The issue with this is that employers often believe that the employee’s physician is acting as an advocate for the employee, which is why they are seeking an IME to begin with. However, the employer must first raise any specific concerns that it has regarding the reliability or accuracy of the existing information with the employee before demanding an IME. This allows the employee to explain the discrepancies or gaps or to attempt to obtain that information from a treating physician (Canada (Attorney General) v. Grover, [2007] FCJ No. 58).

If an employee does refuse a justified demand for an IME, the employer cannot discipline the employee but should instead refuse work until there is compliance (see, for example, Canadian Assn. of Industrial, Mechanical & Allied Workers, Local 12 v. Shell Canada Products Ltd. (Shellburn Refinery) (Vickers Grievance) (1990), 14 L.A.C. (4^th) 75 (Larson) and Via Rail Canada Inc. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (Spatling Grievance) (2002), 106 L.A.C. (4^th) 110 (Hope)). However, as noted above, the employer must ensure that it communicates the specific concerns it has with the existing medical information before refusing work in order to give the employee the chance to obtain the information in a less intrusive manner.  

In the adjudication context, an employer may be entitled to an order for an IME where it is necessary to address the issues in dispute and to ensure the fairness of the proceeding (University of British Columbia and Association of University and College Employees, Local 1 (1984), 15 L.A.C. (3d) 151 (McColl)). This is generally done when it can be shown that the medical information provided by the union is contradictory or unreliable and where the employee’s health is the central issue in the case (see, for example, Toronto Transit Commission v. Amalgamated Transit Union, Local 113 (Johnson Grievance), [2000] O.L.A.A. No. 95, February 14, 2000 (Springate) and Canvil and I.A.M. Lodge 1547 (Stone), [2002] 112 L.A.C. (4th) 313 (Marcotte)).

Conclusion

While it is difficult to provide any sort of formulae for union representatives to apply when faced with a situation where an employer is requesting an IME, the starting point should be that an employee’s right to privacy is paramount. The first step is to ensure that the employer has outlined its specific concerns to the employee, allowing the employee to direct these to their attending physician.

Only after positively determining this should an employee consider whether to comply with a request for an IME. This will require a careful balancing, and the employer will always have to have serious concerns and concrete evidence to support its request for an IME. 

Tagged: Medical

There are several pitfalls with using the Internet for research, including the overwhelming amount of information available, often from dubious sources. However, with a careful approach you can find an amazing array of useful information, often within minutes of starting your search. 

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Tagged: Internet, Research, Strategies

On July 18, 2008, the Supreme Court of Canada decided that in New Brunswick, employers are permitted to terminate employees at the age of 65 because of the terms or conditions of any bona fide retirement or pension plan: New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc., 2008 SCC 45.

In 2004, an employee of Potash Corporation of Saskatchewan Inc. (the “Employer”), working in New Brunswick, filed a complaint with the New Brunswick Human Rights Commission on the basis of age discrimination prohibited by the New Brunswick Human Rights Code, R.S.N.B. 1973, c. H-11 (“New Brunswick Code”).  The Employer had asked the employee to retired at the age of 65 pursuant to the mandatory retirement policy in the Employer’s pension plan.  The New Brunswick Code states that the age discrimination provisions do not apply to a decision to terminate an employee if the decision was take pursuant to a bona fide pension or retirement plan. 

The complaint was referred to a Board of Inquiry, and made a preliminary ruling, which concluded that once a prime facie case of age discrimination had been made out, the Employer must satisfy the established three-part “bona fide occupational requirement” test in order to show that the pension plan is bona fide.  The New Brunswick Court of the Queen’s Bench set aside the Board’s decision and held that that the provision dealing with pension plans was a distinct provision, and required a different test from the provision dealing with “bona fide occupational requirements” in employment.  The New Brunswick Court of Appeal agreed, and the case ended up in the Supreme Court of Canada (the “SCC”).

The only issue before the SCC was what constitutes a bona fide pension plan within the meaning of the New Brunswick Code.  The SCC reiterated, as it had stated in previous decisions, that in Canada, mandatory retirement developed with the introduction of private and public of the pension plans.  When “age” emerged as a protected ground under human rights legislation and, later, the Canadian Charter of Rights and Freedoms, there was “widespread” concern about its potential impact on pension plans.  The SCC found that the New Brunswick legislature sought in its human rights legislation to address the concern that age discrimination claims might make benefits available under bona fide pension plans vulnerable to being destabilized unless protected by legislation.

 The majority of the SCC concluded that for a pension plan to be found to be “bona fide” within the meaning of the New Brunswick Code, it must be a legitimate plan, adopted in good faith and not for the purpose of defeating protected rights.  The majority declared that unless there is evidence that a pension plan as a whole is not legitimate, the plan will be immune from the conclusion that a particular provision compelling retirement at a certain age constitutes age discrimination.  The majority did not require a “reasonableness” aspect to the pension plan in its distinctions based on age.

The partially concurring reasons, given by Chief Justice McLachlin addressed the scope of the exemption for the termination of employment because of the terms or conditions of any bona fide pension plan from the New Brunswick Code.  Unlike the majority, McLachlin C.J.’s judgment required that limits on employee rights must be justifiable in the sense of being reasonably required having regard to the operation and sustainability of the plan (at para. 46).  The Chief Justice stated that the New Brunswick Code should be read as promoting the dual purposes of (1) protecting employees from being deprived of the right to work by age discrimination and (2) protecting the financial security of employees by permitting pension plans to operate on a sustainable basis (at para. 63).

The SCC’s decision only has limited application to workers in British Columbia, where the recent amendments to the Human Rights Code, R.S.B.C. 1996, c. 210 (“B.C. Code”), while prohibiting mandatory retirement, makes exceptions for the operation of pension plans and group and employees insurance plans. 

Employers in British Columbia continue to be permitted to take age into account in the operation of bona fide employee insurance plans and retirement or pension plans.  However, a significant difference between the British Columbia and New Brunswick Codes is that the New Brunswick Code expressly permits “the termination of employment…because of the terms or conditions of any bona fide retirement or pension plan”, while the B.C. Code only makes exception to the prohibition on age discrimination in employment with respect to “the operation of a bond fide retirement, superannuation or pension plan or to a bona fide group or employee insurance plan”. 

What this means is that in New Brunswick, employers are permitted to terminate employees at the age of 65 because of the terms or conditions of any bona fide retirement or pension plan.  Meanwhile, in B.C., employers cannot terminate an employee at the age of 65 because of the terms of a pension plan.  However, it is lawful for a pension plan to operate differently for different employees on the basis of age.

Tagged: Mandatory, Retirement

Wage protection for employees when their employer goes bankrupt finally in place!

The Federal government’s Wage Earner Protection Program (“WEPP”), finally passed by legislation late last year, came into effect in July 2008. 

The WEPP is designed to protect the wages and benefits of workers when employers go bankrupt.  The program reimburses eligible workers for the payment of wages and vacation benefits owed when their employer declares bankruptcy or becomes subject to a receivership, up to a maximum of about $3000. The WEPP payments do not cover severance, termination pay or other employee benefits.  Employees are eligible if their former employer filed for bankruptcy or is subject to receivership, on or after July 7, 2008.  To apply, the employee must have stopped working for the employer for a period of seven consecutive days. 

The Wage Earner Protection Program Act (originally Bill C-55) was first introduced into the House of Commons on June 3, 2005.  It was amended under Bill C-12 and received royal assent in December 2007.

Between 10,000 and 20,000 workers make claims for unpaid wages each year.  It is estimated that the WEPP will cost the federal government $35 million per year. 

Tagged: Wage, Earner, Protection, Program, Act, Bankrupt