League and Williams Lawyers

Tag: mariners

  • When is a Mariner Entitled to Severance Pay? 7 Key Questions to Answer

    When is a Mariner Entitled to Severance Pay? 7 Key Questions to Answer

    “Get Off My Ship, You’re Fired”: When is a Mariner Entitled to Severance Pay?

    When is a mariner entitled to a notice of termination of their employment, or to be paid out for the time instead (called severance pay), is an unfortunately common question. In some cases, a mariner is left with no right to severance, but in many others, the mariner may overlook significant entitlements because they do not understand their rights.  There are, of course, always at least two sides to every story, so in the next Legal Net, I will outline the steps a prudent employer should take to terminate an undesirable employee, but for now, a mariner who faces the dismal view of being fired themselves should ask the following question.

    Question 1: Am I Unionized?

    Unionized employees’ rights to dispute termination or seek severance pay are limited by the terms of the collective bargaining agreements (“CBA”) between their unions and their employers.  These CBAs represent a trade-off where the employee assumes certain protections offered by agreement (such as wage rates, benefits, seniority entitlements, pension, a grievance process, etc.), in exchange for giving up other rights.  A unionized employee must dispute their termination through the grievance process under the CBA and cannot pursue severance pay against the employer in any of the processes discussed below.

    Question 2: Am I an Employee, a Contractor, or a Dependent Contractor?

    If you are not a unionized employee, the second question to ask yourself is: am I a true employee, a contractor, or a mix of these types of workers, someone called a dependent contractor?  This is important because only an employee and a dependent contractor are entitled to severance.  A true contractor has no entitlement to notice of their termination outside of what is stated in their contract, if anything.  An employee or a dependent contractor on the other hand, who are people defined by several different criteria but both of whom rely primarily on a single employer for work and tend to be under a greater degree of employer control than independent contractors, are entitled to reasonable notice of termination, if their contract is silent on this issue.

    Question 3: Was I Fired for Just Cause?

    Regardless of whether you are an employee, a contractor or a dependent contractor, if you are fired for cause you are not entitled to severance pay (unless a written contract says otherwise, which would be very unusual). The law says that a mariner can only be fired for just cause if their conduct fundamentally undermined the employment relationship.  The threshold for just cause is high.  Significant dishonesty, theft, and gross negligence are examples of such behavior.  Mere mistakes, irregular lateness, minor insubordination, and so on can only be just cause for termination if the employer provides written warnings in advance that such behavior will result in termination.  The employer bears the burden of proving they had just cause to fire an employee.

    Question 4: Are my rights limited by an employment contract?

    An employee and a dependent contractor can have their rights to reasonable notice of termination limited by terms of a written employment contract.  Such written agreements are relatively rare in the marine industries.  Unless the court finds the employer has conducted themselves in such an egregious way as to dis-entitle them from relying on the written agreement, terms in the contract that restrict the employee from claiming severance beyond the minimum discussed below are unenforceable and the mariner cannot claim more than what they provide.

    Question 5: If there is no contract, or it is not enforceable, what law governs?

    Where there is no employment contract, or it is not enforceable because of the employer’s action, then the employee may be entitled to severance. Entitlement to severance comes from two possible sources: (1) legislation such as the B.C. Employment Standards Act (ESA) (provincial law), and Canada Labour Code (CLC) (federal law), or (2) judge-made law, called common law.

    The vast majority of marine jobs on the West Coast will be subject to the provisions of the B.C. Employment Standards Act (as opposed to the Canada Labour Code), regardless of the jobs involving navigation and shipping, because the work is related to local voyages as opposed to international or inter-provincial voyages.  This distinction is somewhat academic because the protections offered to employees under both the B.C. Employment Standards Act and the Canada Labour Code are largely similar.  Importantly, however, these laws only provide for a minimum severance entitlement, which is roughly equivalent to 1 week for every year of service up to a maximum of 8 weeks. Common law on the other can award one month per year of service depending on the factors discussed below.

    Question 6: Should I choose Employment Standards/Labour Code or a Judge?

    Awards for severance are typically much higher (often by a factor of 2 to 4 times) for long-term employees who seek a severance award in the courts under common law or judge-made law, as opposed to applying to agencies that administer the Employment Standards Act or Labour Code.  This is because judges are not limited by the maximums set by the ESA and CLC when making their awards, although they are limited to what other judges have awarded to terminated employees in similar circumstances.  The high-water mark for severance awarded by a judge is about 24 to 26 months of pay in lieu of notice.  A judge awards severance based on factors that relate to how difficult it will be for the employee to replace their position and income, such as: age, seniority, education, years of service, and the labour market.

    People are often attracted to pursuing their severance claims under the simplified processes provided for by the ESA or CLC, but they often give up significant rewards by not pursuing their claims in front of a judge.  While some employees are concerned about the costs of hiring legal counsel to pursue their claims in front of a judge, employees should know that many lawyers pursue such claims on a contingency basis (no cure, no fee basis, like a ship’s salvage).

    Question 7: The employer will not or cannot pay my severance, now what?

    Mariners hold a uniquely powerful position in their claims for severance because severance claims give rise to a maritime lien.  A maritime lien is a special legal right that allows the mariners to claim a priority for his severance pay over other debts that the employer owes in respect of the vessel.  In other words, mariners owed severance pay can sue the employer and the vessel, arrest the vessel, require the owner to post bail (money) in the amount of the mariner’s severance claim before the vessel can be released from arrest, and where there are multiple creditors pursuing the employer, the maritime lien entitles the mariner to be paid in priority to other creditors including prior mortgage holders. This is an unusual and powerful right that terminated employees in most other (non-marine) occupations do not have.  It must be used carefully but should not be overlooked.

    This article was originally published May 2015 in Western Mariner magazine.  Darren Williams is principal lawyer with League and Williams in Victoria B.C. and can be reached for question or comment locally 250-888-0002, or at info@leaguelaw.com.

  • A Spirited History: Alcohol on Vessels

    A Spirited History: Alcohol on Vessels

    Alcohol has a Long History with Mariners

    Hardly can there be a more trying career than one with long stints at sea. For as long as we have known alcohol to exist (2700 BC), mariners have consumed it in celebrating their successes, mourning their losses, raising their hopes, and quelling their fears. Since the early 17th century, when it was first reported distilled on sugarcane plantations in the Caribbean and traded by British privateers, rum has been a popular liquor aboard ships. It has become the subject of long standing traditions.

    In December 2014, the issue of drinking aboard vessels caught peoples’ attention when the Royal Canadian Navy implemented a partial ban on drinking at sea. Prior to the partial ban, sailors could consume alcohol while the vessel was at sea, provided they were not on duty in less than six hours. The ban prohibits drinking at sea with the exception of special occasions. The announcement was met with some criticism, and reminded many of when the Royal Canadian Navy stopped issuing a daily ration of rum to sailors in March of 1972. I am grateful to commodore Robert Preston of the Royal Canadian Navy, who was retired for providing the following perspective on the daily “tot”.

    The Daily Tot in the Canadian Navy

    The issue of a daily ration of rum to sailors serving on ships was passed down from the Royal Navy where it originated some 300 year ago. At that time, it was a daily issue of a half pint of neat rum. Over the years, rum issue was regulated by order of a succession of admirals and by 1850, had been reduced from a half a pint per day to two and one half ounces of rum issued to each man. This “tradition” was adopted by the Canadian Navy on its formation in 1910.

    The procedures surrounding the issue of rum, as expected, were closely regulated as rum was a much sought after commodity and the ingenuity of the sailors was boundless in dreaming of weaknesses in the processes surrounding the security which applied to storage and handling of the rum supply and any opportunities the weaknesses provided.

    A short look at the daily procedure of issuing rum on board ships at sea and in harbour reveals the very detailed and precise routine that surrounded the event.

    Rum issue commenced at 1120 in the forenoon with the Bosun’s Mate making the pipe, “Up Spirits”. This brightened the day of every sailor and caused the officer of the afternoon watch to take custody of the keys to the spirit locker, meet with the coxswain and a supply rating and proceed down the many ladders to the spirit locker which was typically located in the very bowels of the ship. The coxswain at this point would have made a record listing each man entitled to his “tot” of rum and the exact amount of rum would be carried from the spirit locker to the location chosen for issuing. (On a fair day it might be on the upper deck or if inclement weather in the main passageway.)  The rum would be poured into a large container from where it would be issued.

    Under the watchful eye of the officer and the coxswain, the supply rating would first issue the correct amount of rum to each of the petty officer’s messes and this would be taken to the respective messdeck as chief and petty officers were permitted to drink their tot unsupervised and at their leisure. Not so for the sailors who would muster at the appointed location and line up with their cups containing a measure of either water or Coke into which the supply rating poured an exactly measured tot of rum. The sailors were required to drink their tot in view of the officer and coxswain to preclude saving it for another day or passing it to a mate.

    When all had been issued their tot, there was usually some left over as attendance at rum issue was voluntary. This excess was referred to as “ullage”. The rules were clear — it was to be irretrievably disposed of in the presence of the officer. By noon, the event was over — each sailor having taken on board 2 and 1/2 ounces of rum and ready to continue his working day.

    It is interesting to note that the coxswain’s tally of daily entitlement did not include officers who as a group were not entitled to the issue of rum. It did not include those sailors who declared themselves “temperance” who were compensated financially with a small addition to their pay. It also did not include those sailors who had incurred the captain’s punishment of “stoppers” usually as a result of issues related to drunken behavior ashore.

    The End of the Issue of the Daily “Tot” in the Navy

    The tradition of rum issue was discontinued in the British Royal Navy in 1971 on a day that will be forever remembered by many as “Black Tot Day”. Canada followed suit the next year, having concluded that the 300 year old practice of a midday issue of rum to those entrusted with the operation and maintenance of today’s complex weapons systems presented certain inconsistencies. The Canadian Navy terminated the daily issue of rum on March 31, 1972. Some have said that ending the daily tot represented progress and others have lamented that, “we have abandoned a tradition that has served us well for over 300 years.”

    Many thanks to commodor Robert Preston (Ret’d) for providing the history of tots in the Navy.

    Alcohol on Non-Navy Vessels, Reasons for a Rationed Approach

    The consumption of alcohol on ships remains extensive, particularly on smaller and less sophisticated commercial vessels and pleasure crafts. While the concerns of what effects alcohol may have on a mariner’s ability to operate a complex naval ship are clearly not the same on other vessels, the effects of alcohol should be closely monitored by owners and masters. The use of alcohol by a crew on a voyage, for example, may mean that the vessel is not legally seaworthy. A vessel’s insurance may be voidable where the owner is aware the crew has consumed alcohol, and the intoxication contributed to an accident. While this was likely not a consideration for the Royal Canadian Navy in banning drinking aboard vessels, as the Navy insures itself, it is a consideration for all other vessels. Although alcohol will obviously have some presence aboard many vessels into the future, its effect should always be closely monitored.

    Article was original published in the March 2015 edition of Western Mariner. Darren Williams is a marine lawyer and principal lawyer at League and Williams in Victoria B.C. and can be reached for question or comment locally 250-888-0002, or at info@leaguelaw.com.  Commodore Robert Preston, RCN, is enjoying his retirement and possibly the occasional rum.