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Questions and Answers
Which situation would likely result in a denial of Workers' Compensation Board (WCB) benefits due to wilful misconduct?
Which situation would likely result in a denial of Workers' Compensation Board (WCB) benefits due to wilful misconduct?
For a mental stress WCB claim to be valid, which condition must be met?
For a mental stress WCB claim to be valid, which condition must be met?
What is generally required from the worker when submitting a disability claim?
What is generally required from the worker when submitting a disability claim?
Which activity does NOT likely lead to WCB benefit denial due to wilful misconduct?
Which activity does NOT likely lead to WCB benefit denial due to wilful misconduct?
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What must be shown for an occupational disease claim to be valid?
What must be shown for an occupational disease claim to be valid?
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What typically constitutes just cause for dismissal?
What typically constitutes just cause for dismissal?
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Which of the following is NOT a requirement for demonstrating just cause?
Which of the following is NOT a requirement for demonstrating just cause?
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Which of these acts would typically warrant dismissal for cause, even if it occurs only once?
Which of these acts would typically warrant dismissal for cause, even if it occurs only once?
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When considering penalties for misconduct, which aspect is most important?
When considering penalties for misconduct, which aspect is most important?
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What should an employer consider last when evaluating just cause for dismissal?
What should an employer consider last when evaluating just cause for dismissal?
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What has increased the importance of privacy concerns in recent years?
What has increased the importance of privacy concerns in recent years?
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What does vicarious liability refer to in the context of privacy invasions?
What does vicarious liability refer to in the context of privacy invasions?
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Which of the following can be considered a basic entitlement after wrongful dismissal?
Which of the following can be considered a basic entitlement after wrongful dismissal?
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What is illegal for employers regarding the costs of the workers' compensation system?
What is illegal for employers regarding the costs of the workers' compensation system?
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What information must employers provide to the WCB?
What information must employers provide to the WCB?
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What is one significant reason for the increase in privacy concerns in today's society?
What is one significant reason for the increase in privacy concerns in today's society?
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Under what circumstances can an employer be vicariously liable for privacy invasions?
Under what circumstances can an employer be vicariously liable for privacy invasions?
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Which factor is NOT considered when assessing whether a sanction for misconduct is proportionate?
Which factor is NOT considered when assessing whether a sanction for misconduct is proportionate?
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What is the standard for determining just cause in terms of frequency of misconduct?
What is the standard for determining just cause in terms of frequency of misconduct?
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Which of the following actions would likely immediately establish just cause for termination?
Which of the following actions would likely immediately establish just cause for termination?
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What is the primary obligation of employers regarding the funding of the WC system?
What is the primary obligation of employers regarding the funding of the WC system?
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Why are employers required to provide information to the WCB?
Why are employers required to provide information to the WCB?
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What conditions suggest that an employee has not voluntarily resigned?
What conditions suggest that an employee has not voluntarily resigned?
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What is the key responsibility of an employee when it comes to mitigating damages after dismissal?
What is the key responsibility of an employee when it comes to mitigating damages after dismissal?
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Which situation would NOT typically constitute constructive dismissal?
Which situation would NOT typically constitute constructive dismissal?
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Which of the following is a reasonable action for an employee to mitigate damages?
Which of the following is a reasonable action for an employee to mitigate damages?
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In the context of dismissal, what does 'reasonable notice' typically entail?
In the context of dismissal, what does 'reasonable notice' typically entail?
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What factor may contribute to an employee needing to continue working despite a constructive dismissal claim?
What factor may contribute to an employee needing to continue working despite a constructive dismissal claim?
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What is the primary goal of WCB regarding injured workers?
What is the primary goal of WCB regarding injured workers?
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What must employees do to avoid a suspension of benefits from WCB?
What must employees do to avoid a suspension of benefits from WCB?
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What can employers be held liable for regarding employee actions?
What can employers be held liable for regarding employee actions?
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What condition must be present for an employee to claim constructive dismissal?
What condition must be present for an employee to claim constructive dismissal?
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Which of the following is NOT a reasonable act to mitigate damages after dismissal?
Which of the following is NOT a reasonable act to mitigate damages after dismissal?
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How can an employer show that an employee failed to mitigate damages?
How can an employer show that an employee failed to mitigate damages?
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Under what condition may an employee be expected to continue working despite a claim of constructive dismissal?
Under what condition may an employee be expected to continue working despite a claim of constructive dismissal?
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How do employers benefit under the workers' compensation system?
How do employers benefit under the workers' compensation system?
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Which types of workers are typically excluded from mandatory workers' compensation coverage?
Which types of workers are typically excluded from mandatory workers' compensation coverage?
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What must be demonstrated for an injury to qualify for WCB benefits?
What must be demonstrated for an injury to qualify for WCB benefits?
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Which of the following is true regarding employer contributions to the workers' compensation system?
Which of the following is true regarding employer contributions to the workers' compensation system?
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Which statement about workers' compensation coverage is correct?
Which statement about workers' compensation coverage is correct?
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Workers' compensation is a mandatory insurance scheme for most employers.
Workers' compensation is a mandatory insurance scheme for most employers.
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The workers' compensation system aims to provide benefits even if an injury is due to employee negligence.
The workers' compensation system aims to provide benefits even if an injury is due to employee negligence.
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An employee must prove that their injury resulted directly from performing their job duties to qualify for workers' compensation.
An employee must prove that their injury resulted directly from performing their job duties to qualify for workers' compensation.
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Coverage under the workers' compensation system is optional for most employers.
Coverage under the workers' compensation system is optional for most employers.
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Employers can recover part of their premium costs from workers.
Employers can recover part of their premium costs from workers.
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A worker must document all claims, even those that are minor.
A worker must document all claims, even those that are minor.
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Employers are not required to establish a return-to-work plan for injured employees.
Employers are not required to establish a return-to-work plan for injured employees.
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Misconduct that is a momentary error in judgment is always treated the same as deliberate misconduct.
Misconduct that is a momentary error in judgment is always treated the same as deliberate misconduct.
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Employers are required to conduct investigations promptly when allegations are made.
Employers are required to conduct investigations promptly when allegations are made.
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Extenuating circumstances are ignored when determining appropriate sanctions for misconduct.
Extenuating circumstances are ignored when determining appropriate sanctions for misconduct.
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Study Notes
Workers' Compensation Legislation
- Workers' compensation (WC) acts in Alberta and BC are no-fault insurance schemes for work-related injuries or diseases.
- Employers pay premiums to fund the system in exchange for protection from lawsuits by injured workers.
- WC legislation is increasingly focused on prevention.
Key Features of the Legislation
- No-fault system: compensation is paid regardless of employer or employee negligence.
- Funding through premiums: benefits are financed by premiums paid by employers.
- Workers cannot contribute to WC premiums: this is illegal.
- WC rights cannot be waived.
- Coverage is mandatory for most employers: exceptions may apply.
- Focus on early and safe return to work (RTW).
- Vocational rehabilitation available for employees unable to resume their original jobs.
- Administered by WC boards (e.g., WorkSafeBC and WCB Alberta).
Coverage
- Most industries are covered.
- Some industries (e.g., financial institutions, recreational clubs, broadcasting stations, law firms) may choose to participate in WC coverage, even though they aren't automatically included.
- Agriculture exemption is eliminated in Alberta.
- Independent contractors, sole proprietors, and executive officers aren't covered by workers' compensation.
WCB Benefit Eligibility
- Benefits must arise "out of and in the course of employment".
- An injury need not directly result from job performance, but must reasonably be incidental to it.
- Wilful misconduct (e.g., criminal acts, intoxication, intentional self-inflicted injury, fighting outside of employment duties, inappropriate horseplay) typically does not result in covered benefits.
Disability Claims
- The onus typically rests with the worker to prove the causal link between the injury and work, with exceptions such as first responders and specific conditions outlined in Schedule B of BC WC Act and the Alberta WC Regulation.
- Conditions like industrial diseases, PTSD for first responders, or certain types of cancer and heart attacks for firefighters may have altered causal relationship procedures.
Occupational Diseases
- WC benefits apply to occupational diseases which need a clear causal relationship between work or work conditions and the disease.
Mental Stress or Disorder and Chronic Pain
- Mental health conditions, resulting from excessive or unusual work-related events, need objective confirmation and a diagnosis by a qualified expert.
- These conditions aren't automatically a result of claiming compensation for other injuries.
What Do Benefits Cover?
- Lost earnings on the day of injury.
- Health care costs.
- Temporary partial disability.
- Permanent total disability (payout for life).
- Temporary total disability (periodic payments, ceasing after recovery).
- Permanent partial disability or disfigurement (payout for life).
- Vocational rehabilitation.
- Death and survivor benefits (lump-sum payment based on factors like deceased's earnings, dependents, and spouse's capacity).
Case Study: Robert
- Robert, a 38-year-old auto mechanic, tore a ligament in his hand (a prior injury) during an 8-hour work shift.
- Otto, his employer, must pay Robert's full wages and benefits for the four weeks he is unable to work in consequence of his injury.
- WCB will cover Robert's physio and treatment.
- WCB benefits will cover 90% of Robert's pre-injury earnings - e.g., $900 per week.
- After four weeks, Robert returns to modified duties and earns $500 a week.
- Robert's total weekly income is now 950(hisnetsalaryof950 (his net salary of 950(hisnetsalaryof500 plus 90% of his loss of earnings, $450).
Duty to Cooperate
- The goal of WC is to return a worker to their pre-accident job.
- Both employer and employee must maintain communication.
- Workers must disclose medical information relevant to their functional abilities, and cooperate in modifying work to facilitate a quicker return to full capacity.
- Failure to provide this information might lead to suspension of benefits.
Funding the WC System
- Employers fund the WC system through premiums.
- Employers are prohibited from recovering any of their premiums from workers.
- They must register with the board.
- Employers must provide information to the WC boards about their industry, potential hazards, and any other relevant details, to adequately classify risk.
Effective Claims Management
- Establish procedures for investigating injuries.
- Properly document all claims.
- Ensure timely compensation for justifiable claims.
- Only challenge doubtful claims from the outset.
- Maintenance of records of all contacts with the WCB.
- Development and implementation of a strategic return-to-work plan.
- Confidentiality of medical files should be maintained separately from other kinds of personnel files.
Appeals
- Workers, dependents, or employers who disagree with a decision can request a review, within the 90-day time limit established for BC.
- Appeal commissions are separate from WC boards.
Privacy Inside and Outside the Workplace
- Personal information privacy is a relatively new challenge, given improvements in technology.
- Employers are potentially liable for privacy violations by their staff in the line of duty.
- A federally-regulated organization must comply with PIPEDA (Personal Information Protection and Electronic Documents Act).
Personal Information
- All information that identifies a person, including:
- Age, sex, religion, opinion, photographs
- ID number, home address and other personal information,
- Purchasing and spending habits, income and credit records.
- Disciplinary actions, employee files, pay and benefit records.
- Blood types, medical records.
Freedom of Information and Protection of Privacy Act
- Individuals have the right to access government-held information.
- Public bodies collect, use and disclose personal information under clearly defined legal limitations.
- Public bodies include government departments, branches, agencies, boards, commissions, corporations, educational bodies, healthcare bodies, local governments and self-governing organizations.
PIPEDA: Who's Covered?
- PIPEDA became legislation in January 2001.
- Covers personal information of employees and customers, held by federally regulated organizations.
- Alberta, BC, and other provinces have parallel legislation referred to as PIPA.
PIPEDA: Recent Amendments
- Amendment in June 2015 covered protection against breaches of data security and broadened scope of personal information.
- The new legislation addresses business contact information and permission to third parties disclosure in the case of specific situations such as fraud or unethical activities.
Privacy: 10 Principles
- Principles for collecting, using, and retaining information (includes identifying the purpose, limited collection, limited use and disclosure, accuracy, safeguards, openness, access, and recourse).
Personal Information Protection Act (PIPA)
- PIPA ensures the privacy of the sensitive information collected, used and disclosed by private sector organizations.
- Includes workplace rules for employee information.
- Includes the rights of individuals whose personal information is involved in transactions or activities of commercial value in the private sector,
- Includes the same rules applying to employees,
- Individuals can access personal information and correct inaccurate information.
PIPA: Who's Covered?
- Includes provincially regulated organizations, such as non-profits, unions, private schools, partnerships, corporations, and unincorporated associations.
- Includes any individual who acts in a commercial context and for organizations.
PIPA: Principles
- Covers collection, use, and disclosure of personal information in the private sector.
- Recognizes both the right to privacy and the need of organizations to collect, use, and disclose information for reasonable purposes
- PIPA applies to personal information in the private sector, especially in commercial activities and transactions.
Privacy – Steps to Compliance
- Appoint a Chief Privacy Officer (CPO).
- Assess information practices and data for compliance.
- Create policies and procedures to ensure compliance.
- Train all staff to understand privacy rules.
- Monitor policy effectiveness and make changes whenever needed.
Resignation & Retirement
- Resignation: Resignation should be formally accepted in writing (letter). An employee given the option between resigning or getting fired may not be considered to have resigned voluntarily - employer should document reason for dismissal. The employer is typically obligated to provide reasonable advance notice.
- Retirement: Mandatory Retirement policies in Ontario are typically no longer permitted.
Dismissal Without Cause
- If there's no just cause for dismissal, the employer must give reasonable notice.
- Statutory minimum requirements for termination notice in Alberta and BC are considerably lower than that implied in common law circumstances
Minimum Statutory Requirements: Notice/Pay
- Notice Periods in Alberta and BC are calculated based on the length of service with the employer.
- Minimum notice periods vary depending on whether the employee has worked for an employer for three months or more.
- Temporary layoffs are an exception; no notice or pay is usually needed for such a short-term workforce adjustment
- Once the employer gives notice, the terms and conditions of employment cannot be changed
Minimum Statutory Requirements: Temporary Layoffs
- Temporary layoffs are defined as a temporary ceasing of work with the intention of recalling the employee.
- Layoffs lasting 60+ days in Alberta require compensation.
- Notice requirements in BC depend on length of employment.
- The length of layoff may be factored in collective agreements
Minimum Statutory Requirements: Continuity of Employment
- Employment may continue after a business transaction (such as selling or transferring ownership). A gap of more than three months will affect notice period requirements.
Minimum Statutory Requirements: Communicating Notice
- Notice must be delivered in writing.
- Employer must meet the statutory requirements for notice/pay
- Terms and conditions of employment cannot be altered after giving notice
Minimum Statutory Requirements: Calculating Notice—Alberta
- Notice calculation in Alberta varies by the length of time being employed by the company.
Minimum Statutory Requirements: Calculating CLOS/Notice—BC
- Calculation for notice periods for compensation and/or length of service are similar to those for Alberta, with an added qualification on certain circumstances,
- Notice periods in both jurisdictions are calculated differently depending on length of employment.
Common Law Reasonable Notice
- Common law notice periods are more stringent than statutory requirements, and depend on numerous factors such as age, position, length of service, compensation, and the availability of similar employment opportunities.
Which Is Better: Working Notice or Pay in Lieu of Notice?
- Working notice is usually more cost-effective, especially during economic downturns.
- Performance-based termination is an instance where working notice may not be preferable to pay in lieu of notice.
- Inappropriate if termination is for performance issues that are not quite just cause, where an alternative opportunity is not available.
Structuring a Separation Package
- A separation package may include a lump-sum payment to reflect the statutory minimums and common-law reasonable notice requirements, while also accommodating lower offers if the employee prefers them.
- Employee compensation and benefits can continue during the notice period and payment amounts may be pro-rated depending on whether the employee takes on other employment.
Minimum Statutory Requirements: Mass Terminations
- Provinces' and territories' specific requirements for mass terminations.
- Notice periods vary based on the number of employees being terminated.
Minimum Statutory Requirements: Exceptions to Notice Requirements
- There are certain exceptions to statutory minimums for notice periods. Some reasons why an employee may not require notice include:
- Probationary period.
- Term or task employment.
- Temporary layoff.
- Dismissal for cause
- Employee's refusal to accept an appropriate alternative position
- Return from a previous layoff
- Strikes or lockouts
- Casual employment
- A contract frustration
- Seasonal work.
- Employee resignation.
Wrongful Dismissal
- An employee may sue an employer for wrongful dismissal if their termination does not meet legal requirements.
- If the court finds wrongful termination, and the employment does not have just cause for this, then remedies can include reinstatement or compensation in lieu of notice.
- Dismissal claims deadlines for bringing action are two years from date of dismissal.
- Claim procedure and legal remedies vary depending on the amount being sought and the province.
Reasonable Notice Damages: Basic Entitlements
- Reasonable notice damages pay out for aspects of the employee's entitlements, including compensation, benefits, etc. Basic entitlements are dependent on contract details and existing circumstances.
Wrongful Dismissal: Other Types of Damages
- Types of damages awarded in wrongful dismissal cases other than just reasonable notice;
- Types of damages may include moral (Wallace) damages or aggravated damages (an extension of notice is not considered a damage) and punitive damages for the employers.
Bad Faith Dismissal
- Employers may face bad-faith dismissal accusations if their conduct is judged to be untruthful, misleading, insensitive, or humiliating, such as making false claims or inciting embarrassment.
Duty to Mitigate
- Dismissal of the employee creates a duty to mitigate (lessen) damages by seeking similar employment
- The onus rests with the employer to prove that the employee failed in this mitigation duty, and there were legitimate employment opportunities
- The employee has a duty to take reasonable steps toward finding similar employment.
Constructive Dismissal
- Constructive dismissal happens when an employer makes significant, undesirable changes to the contract without adequate notice.
- If the employer's conduct implies a desire to terminate the contract, the employee has the right to resign and claim damages.
Avoiding Wrongful Dismissal Claims
- Procedures to help prevent wrongful dismissal claims by following all required steps and rules, as a good employer. The specific steps included in this section will vary to a degree.
Dismissal With Cause
- Dismissal with cause occurs when an employee breaks their contract significantly, making the employer unbound to notice or pay obligations.
- Near cause is used when the conduct is not severe enough to be "just cause," but still may result in lower notice periods of compensation
Overview of Just Cause Requirements
- Just Cause is determined when an employee's conduct violates the employment contract in a fundamental way, freeing the employer from notice or payment obligations..
- "Near cause" misconduct or incompetence generally does not warrant a reduction in notice or pay terms..
- Sanctions must be proportionate to the act of misconduct; deliberate acts warrant harsher responses.
Establishing Just Cause Under the Common Law and Potential Grounds for Termination
- Examples of grounds for dismissal under common law and for which an employer has just cause to terminate an employee,
- Includes dishonesty, insolence/insubordination, incompatibility, off-duty conduct, conflict of interest, disobedience, absenteeism or lateness, sexual harassment, etc.
Grounds That Cannot Constitute Just Cause
- Employers may not dismiss employees for exercising statutory rights (such as human rights protection, rights under employment standards legislation or occupational health and safety, or other statutory protection.)
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