Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 neer's designation. Atlas management sent him a letter outlining new responsibilities to reflect this designation. e new duties included specialized project engineering, reviewing fabrication drawings and calcu- lations with other engineers, and reporting to a new boss. He would still be responsible for research and development of products. ough he didn't officially supervise any em- ployees, he provided oversight and guidance for those working on or developing projects. e change in duties was accompanied by a pay raise from $52,000 to $70,000 per year. Tsai no longer visited job sites or prepared reports in favour of his new duties, and he was no longer involved in workplace safety. He also went to management meetings and started representing Atlas in developing standards with CSA. In July 2015, Atlas terminated Tsai's em- ployment without cause. It provided him with seven weeks' pay, which was the mini- mum amount stipulated in the B.C. Employ- ment Standards Act and allowed for in the termination provision of Tsai's contract. Tsai sued for wrongful dismissal, arguing the termination clause was unenforceable because as a professional engineer he was exempt from the Employment Standards Act. He claimed that he was therefore enti- tled to common law notice. He also claimed that when he received his professional engi- neering designation, his job duties changed significantly to the point where his employ- ment contract was no longer valid. e court noted that it had been estab- lished in jurisprudence that employment standards legislation could be incorporated into employment contracts if it wouldn't otherwise apply, as long as the contract wasn't unconscionable. It referred to the B.C. Supreme Court's 2014 decision in Brown v. Utopia Day Spas and Salons Ltd., where the higher court stated: "Absent unconscionability, an employer can make contracts with employees that 'referentially' incorporate the minimum notice periods in the ESA. Such contractual notice provisions are enough to displace the presumption that the contract is terminable without cause only on reasonable notice." e court found that Tsai's employment contract properly incorporated ESA provi- sions and the termination clause was en- forceable, as long as the contract itself was. As for the change in Tsai's job duties, the court agreed with him that there was a substantial and fundamental change in the employment contract. While it wasn't surprising that Tsai's job duties changed with his professional engineering designation and there was an expectation this would happen when the employment contract was signed, the new designation wasn't guaranteed due to the difficulty of the process and it wasn't contemplated in the contract. e court determined that Tsai's employ- ment and responsibilities fundamentally changed and eroded the foundation of his employment contract beyond what it con- templated. As a result, the contract could no longer apply and the termination clause — despite its sufficient wording — could not be enforced. Tsai was entitled to 10 months' notice of termination, said the court. Atlas was ordered pay Tsai $25,000 plus costs, as that was the cap on damages for the court. See Tsai v. Atlas Anchor Systems (B.C.) Ltd., 2016 CarswellBC 3580 (B.C. Prov. Ct.) and Brown v. Utopia Day Spas and Salons Ltd. 2014 BCSC 1400 (B.S.S.C.). Canadian Employment Law Today | 7 More Cases « from NEW DESIGNATION on page 1 Contracts can incorporate legislative provisions For 25 years, The Annotated Canada Labour Code has been the authoritative resource labour relations professionals rely on to help them interpret and apply the Canada Labour Code. 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