Newsletter by Michael J Weiler
MAILED TO SUBSCRIBERS OF THE NEWSLETTER OF
Michael Weiler Employment + Labour Law on January 23, 2019
Happy New Year folks. I trust everyone had a break over Christmas and hit the refresh button getting ready for what will undoubtedly be a very important year for employers and employees in BC. Assuming the NDP is still in power come the February sitting of the House, we can expect major legislative changes to employment and labour laws in the Province. As well the courts will continue to play a major role in defining the rules governing the employer/employee relationship. Unlike Ontario which is reversing the labour and employment law reforms, BC will make these major changes that will be mostly in favour of employees, and 2019 will certainly become “The year of the employee”. I hope that the following information and recent postings on my blog will be helpful to you in navigating your way through 2019.
NOTICE PERIODS ROUNDUP FOR 2018
Each year we report on how the courts have defined “reasonable notice” in the previous year. For those employers who have binding written employment agreements that define the notice period on termination – congratulations! Those agreements should be determinative, and therefore these decisions are not relevant. But for the vast majority of employers who do not have such written agreements in place with their employees, the following summary will be very much relevant and should be of interest. READ
COURTS ONCE AGAIN STRIKE DOWN NON COMPETITION CLAUSE
Given the shortage of skilled workers and senior management, it is not unusual to see employers trying to protect their interests by having their employees sign contracts that restrict the employee from competing or soliciting customers after the employee leaves. These restrictive covenants are frowned upon by the courts but can be effective if properly drafted. Telus recently found out the hard way that the non-competition clause they included in a senior executive’s employment contract that Telus said it paid $1 million to achieve was found to be unenforceable. The fact the employee had breached his fiduciary duties to Telus did not affect the result.
In finding that the clause was unenforceable the court noted:
“In my view, the restrictive covenant is the product of overzealous drafting by Telus’ solicitors. The entire focus of the covenant appears to be directed to making the covenant as broad as possible without giving adequate consideration to the important interests that Telus seeks to protect in the covenant or the interests of Mr. Golberg as an employee. READ
ONTARIO JUDGE BLOWS THE LID OFF THE 24-MONTH NOTICE CAP
In my December 2015 blog, I commented on the increasing number of decisions in Ontario that awarded notice periods beyond the normal “cap” of 24 months: http://weilerlaw.ca/will-the-rough-upper-limit-of-24-months-notice-be-increased-in-bc/. I opined that the 24-month cap will remain the law in BC. However, Ontario courts continue to push the envelope in extending notice periods beyond 24 months. See for example: http://weilerlaw.ca/26-months-notice-for-husband-and-wife-contractors/.
Now an Ontario court has held that 36 months’ notice would have been reasonable. READ
WEILER LAW SEMINARS ON LABOUR CODE AND EMPLOYMENT STANDARDS CHANGES
Assuming the NDP/Green coalition goes ahead with changes to the Labour Relations Code and the Employment Standards Act, we will send out a reporting email once the legislation passes third reading highlighting the changes and how they might affect employers.
In addition, we will offer half-day seminars likely to be scheduled a month after the legislation passes. Stay tuned for notices on the date, time and place.
If anyone in your organization would be interested in attending please send me an email with their contact information and we will put their names on our priority list of attendees.
Link here to KSW’s Law blog full Table of Contents and all posts, or use individual links above to go to a particular post.