In our winter 2009 newsletter, Dolden Wallace Folick LLP talked about the new rules affecting commercial liquor hosts in 2009 under the BC Security Services Act. go2HR has obtained a legal opinion from Alexander Holburn Beaudin & Lang LLP about who pays the cost of training and certification.
The following is a synopsis of this opinion.
Specifically, a legal opinion was obtained on the following three questions:
- Do the operators of licensed establishments have to pay the cost for an employee performing door security work to obtain a security worker license under the Act?
- What happens if an existing employee refuses or fails to obtain a security worker license?
- What is the effect of a written employment contract or, in a unionized workplace a collective agreement, on the above answers?
Do the operators of licensed establishments have to pay the cost for an employee performing door security work to obtain a security worker license under the Act?
In legal counsel’s opinion, hospitality industry employers will most likely be required to pay for the cost of training and licensing existing door security employees working at a licensed establishment. Although case law is not clear on this, the Employment Standards Tribunal has ruled on several occasions that employers are required to pay for the cost of training under similar situations. Therefore, if you are contemplating challenging this requirement you are advised to seek legal counsel.
Operators of licensed establishments may require prospective employees applying for positions to already have a security worker license as a prerequisite for employment. Where a license is required as a requirement for employment, the employer must ensure that no employment relationship or promise of employment is made to the applicant prior to licensing to avoid the obligation to pay for the cost of the prospective employee obtaining the license.
Operators of licensed establishments will be able to contract out the provision of security work to avoid the cost of training door security staff. The contracting out of security work will need to ensure that a true independent contractor relationship is established with a security business so that the responsibility for compliance with the Act and Regulation is that of the contractor.
What happens if an existing employee refuses or fails to obtain a security worker license?
In the opinion of legal counsel, the failure of an employee to obtain a security worker license required to perform their duties may amount to just cause for termination of employment. However, counsel goes on to caution that several factors including the reason the employee could not obtain the license, the employee’s work history and whether other suitable positions are available to the employee may be considered when determining just cause for termination. Operators of licensed establishments should seek legal advice before terminating an employee for just cause due to an employee fails to take the training or obtain a security worker license.
Counsel also went on to say that an application for a security worker license will require disclosure of an employee’s criminal record. They would not expect a license to be denied simply based on the existence of a criminal record although this will depend upon the administration of the Act. Where an employee is not able to obtain a security worker license because of prior criminal convictions, an employer will need to consider its obligation not to discriminate against an employee based on a criminal conviction except with respect to a bona fide occupational requirement as set out in Section 13 of the Human Rights Code.
What is the effect of a written employment contract or, in a unionized workplace a collective agreement, on the above answers?
In legal counsel’s opinion the analysis above would be the same even where such agreements exist. The employee will not be able to contract out of the minimum obligations of the Employment Standards Act namely, the requirement of an employer to pay for the training of an employee and the prohibition against requiring employees to pay business costs.