The following is an edited transcript of an interview on The Simi Sara show on CKNW 980.
Dealing with employment-related disputes is always a delicate situation. Sometimes employees run into trouble, sometimes companies run into trouble, and it’s in those situations that people call somebody like Elizabeth Reid, a lawyer who focuses on employment, labor, and human rights matters.
I know you can’t tell me the specifics of the cases that you have to deal with, but you primarily deal with disputes that come up at work?
Elizabeth Reid: Yeah. We deal with the entire employment relationship, starting from the initial hiring. For instance, employment contracts that are put into place at that time, disputes that arise in the workplace as that employment relationship is going on, and also, of course, the termination of the employment relationship as well.
Let me ask you about those contracts. Have those changed at all over the years? Do they cover more material now when you hire somebody?
Elizabeth: They probably cover about the same material. The biggest mistake that we see people make is that they don’t have a contract in place, or they don’t have a written contract. Because as soon as you have a handshake, a deal, you’ve got a contract, and most people don’t realize that there are terms that get implied in that, even if you haven’t decided what they’re going to be and have written them down.
Elizabeth: A classic example is notice periods. If you don’t say what’s going to happen when you terminate the employment contract, and how much notice or severance is going to be offered, you are actually going to default to what we call common law, that is, basically the courts are going to decide how much notice that person is going to get. It’s a lot more efficient for everybody if you think about that in advance and you write it down in your written contract.
Would you say that people have too many assumptions sometimes? Like, they assume, I’m just giving two weeks notice and that’s good enough.
Elizabeth: Absolutely. Frequently they will default to the Employment Standards Act, and while it’s really important to think about the Employment Standards Act, it just sets out the bare minimums and it doesn’t deal with this other piece of common law notice.
A lot of people just shake hands and talk about it, and you said that’s binding?
Elizabeth: That is a binding employment contract, yes.
But what if the two parties don’t agree on what was said or what they agreed on when they shook hands… ?
Elizabeth: … That is exactly the kind of problem that comes up if you don’t have something in writing!
Okay. So, if there isn’t something in writing, who primarily benefits from that? Does it tip in the company’s favor? Does it tip in the employee’s favor?
Elizabeth: It depends a little bit on which kinds of clauses we’re talking about. I would say generally everybody benefits from the written contract because then there’s no question and nobody has to spend a lot of time or money phoning someone like me to say, “Well, how much notice should I get?”
Hmm, you want them to spend the time to call you, right?
Elizabeth: Well, I do, but I have my clients’ best interests at heart, and they will pay me less at the beginning of the employment relationship than they will at the end if they put the contract in place first.
Okay, so what are some of the most overlooked things that people, even when they do have what they think is a pretty good contract, forget to put in there?
Elizabeth: The biggest thing is they actually will do offer letters, which can be written contracts, but they won’t put in a termination clause. That’s a big one. We also see different benefits and commission structures, that kind of stuff, left out, and then you can get into big disputes later about what was intended with that contract.
So if you get an offer letter from a company going, “It is my pleasure to offer you x, y and z…” That’s a deal, right?
Elizabeth: Yeah, as soon as you sign off on that, that is a deal, yes.
Whew. Good to know.
You get called for all sorts of other things, too, even some embarrassing things. You said – and I can’t believe that people are still doing this – employees are still behave badly on company email?
Elizabeth: Yes. Yes, unfortunately, people do sometimes forget that anything that is going through the company email may trigger someone in the IT department to have a closer look. There have been some pretty frightening things that I’ve had to look at.
I can’t even believe this. I mean, I understand when email was new. Twenty years ago you didn’t understand that you shouldn’t do stupid things or send stupid things via company email. I thought people were mostly on board with that now, but you’re say people still look at the wrong things, and, I’m just going to say, send the wrong pictures on company email?
Elizabeth: Yes, we see that all the time.
What? How does an employer deal with that?
Elizabeth: Well, it depends a little bit on the level of employee. Most of the time, if it’s a junior level person, you’re going to have a talking with them.
Like, “What were you thinking?”
Elizabeth: Exactly. “What were you thinking?” I have seen occasions where literally we have senior managers involved. Someone will put some pictures in a folder and pass it across the table.
Oh, my gosh. That is so awkward.
Elizabeth: Yeah, you don’t really need to say much more after that.
No, I don’t think so. Okay, you were saying that, depending on how the economy is, an employment lawyer is always in need. How would you describe the economy right now? What is the main thing that you deal with right now? Is it writing contracts? Is it writing severance packages?
Elizabeth: We’re sort of in a bit of an in-between phase right now. I would say I’m seeing equal amounts of termination termination and severance package issues. Certainly people are hiring right now, so I am seeing those. And then we always have the crazy things that people are doing at work, whether it be the managers or the employees, and that’s equal opportunity.
I want to hear more stories about that, but I know you can’t talk about it. Let’s say somebody does get into a dispute with an employer. What is the next step after that? Where do you take that? Does it go to the court system?
Elizabeth: One of the challenges with employment-related disputes is you can have the same factual scenario and end up in three different places. If it’s a termination case, you could be looking at a wrongful dismissal case in the B.C. Supreme Court or B.C. Provincial Court, which is basically about how much notice is that person going to get if you didn’t have an enforceable contract. On the same facts, if there were racial slurs involved with the termination, or if the person was terminated because they had a disability, you could also be at the Human Rights Tribunal to deal with that piece. If the Employment Standards Act wasn’t respected during that employment relationship, you could be there, too.
Oh, okay. The way to protect yourself from any of these situations arising then?
Elizabeth: The best way is to make sure you have an enforceable employment contract in place. After that, if disputes arise particularly in the human rights front, it is a really good idea to get some advice before you take any steps primarily because people often just don’t know what they’re allowed to do or not do. That goes for employees and employers.
Right. I’ve also heard where more and more companies are also taking any kind of employment-related disputes and sending them straight to arbitration or mediation. Does that happen?
Elizabeth: We don’t see a lot of that because, generally speaking, we see a lot of negotiation between counsel. Once it comes to your legal counsel, assuming you have counsel on the other side, you’re essentially going to be negotiating or mediating that. Now, if you are in a more formal process, most of them do have mediation options. Particularly the Employment Standards branch and at the Human Rights Tribunal they have built-in mediation, so you definitely might see that there as well.
So you kind of live by the rule “Get it in writing?”
Elizabeth: I do. Absolutely. Get it in writing and put it in place properly because that’s the other key is people often think, “Oh, well, okay, I’ve downloaded this contract off the internet,” which I wouldn’t recommend. But at any rate, if you try to do that, assuming that you somehow manage to get an employment contract that the language is going to be enforceable, if you don’t put it in place at the right time, then even though you have the contract, even if you had all the right language in it, you still could end up with unenforceable contract.
But what’s the right time? I don’t understand.
Elizabeth: Right time is either before you start the employment relationship or at a time when someone is getting some kind of benefit, like a salary increase or a promotion. The reason for that is if you don’t have anything in writing before the person gets there, essentially you have that handshake deal, and that’s a contract. So, when you put in place this new one in writing a couple of weeks later when you think, “Oh, I forgot to get them to sign that,” you’ve already got an employment contract and if the employee doesn’t get some kind of benefit for signing the new written contract, then that contract could be unenforceable.
Elizabeth Reid focuses on employment, labour and human rights matters at Boughton Law.