Canadian Employment Law Today

November 6, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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2 | November 6, 2019 with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Canadian HR Reporter, 2019 Have a question for our experts? Email jeffrey.smith@keymedia.com Answer: An employee can be found to have consented to unliterally imposed changes to the terms and conditions of their em- ployment. ere are no grounds for a claim of constructive dismissal where such con- sent can be made out. A determination as to how long it takes to establish this con- sent is specific to the circumstances of each case. Accordingly, there is not a single time- frame of universal application that can be relied upon. at said, some general principles can be established. e test for a determination of employee consent is objective. In other words, the court will ask whether a reason- able person in the position of the parties would believe that the employee has agreed willingly to the imposed changes. Courts have further described this test as the ques- tion of whether a reasonable "trial period" has occurred. An employee cannot be found to have accepted changes in the terms and conditions of their employment unless they are fully aware of what those changes in- volve. In order for a reasonable trial period to be established, the employee must be found to have sufficient time to assess the suitabili- ty of the changes to the terms and conditions of their employment. Accordingly, the finding of a reasonable trial period length will vary with the circum- stances of each case, with emphasis placed on the type of change that triggered the right to claim constructive dismissal and the per- sonal circumstances of the employee. Courts have found multiple-month trial periods to be appropriate when a change constitutes a significant alteration to the terms and condi- tions of employment. Although the question of reasonable trial period length is context-specific, it is clear that consent will not be made out if an em- ployee continues to work while explicitly protesting the changes to the terms and con- ditions of their employment. In the event that the protesting employee sues their em- ployer for constructive dismissal, that em- ployer cannot claim to have been "surprised" by the act or to have believed that the em- ployee consented to the changes. at said, there is also authority to suggest that an em- ployee must protest consistently. If an em- ployee initially protests changes to the terms and conditions of their employment but subsequently goes silent, an argument exists that they have consented to those changes. Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or lschatz@mltaikins.com. Acceptance of significant changes to job Question: If any employee disagrees with significant changes to her job but continues working, how long can the employee work with the changes before it can be assumed the changes are accepted and there is no constructive dismissal? Employee's refusal to take safety training Question: How seriously should an employer treat an employee's refusal to take safety training? If the employee is well aware that it is a requirement, are additional warnings necessary or can the employer move to dismissal? Answer: Employers have a general duty under occupational health and safety legis- lation to maintain a safe workplace, which includes an obligation to provide employ- ees with proper safety training. Employers must ensure that work is done by compe- tent employees who have the knowledge and training to perform their duties, and employers should not permit employees to engage in activities for which they are not properly trained. Employees, therefore, have a corre- sponding duty to follow employer proce- dures regarding workplace safety, including participating in safety training that is rel- evant to the workplace and the employee's duties. If an employee refuses to complete required safety training, this may constitute insubordination, which can be treated as a disciplinable offence that can result in ter- mination. To determine the appropriate level of discipline for an employee who refuses to participate in safety training, it is impor- tant to consider the individual circum- stances of the situation at hand. Depending on the seriousness of the situation, the em- ployer may move straight to termination; however, in other situations, the employer may need to provide progressive discipline prior to termination. Factors that could be relevant to the deci- sion to warn or terminate include but are not limited to: • The relevance of the training to the em- ployer's workplace • The relevance of the training to the em- ployee's duties • The reason or excuse for not participating in the safety training • Whether the employee is negative, rude or disrespectful • The employee's discipline history and whether progressive discipline has been used • The number of opportunities the employ- er afforded the employee to comply with directions • Whether the safety training has a disci- plinary component. Employers have a right to manage their business and any employee refusal to fol- low directions may result in termination. In the case of safety training, employers have a statutory mandate to provide safety train- ing to employees, and, therefore, refusal to participate should be taken very seriously. A best practice for employers is to make clear to employees that failure to partici- pate in safety training may result in disci- pline up to and including termination. If an employee refuses to complete required training, this may constitute insubordination. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as work refusals, employees who quit and change their mind, and termination agreements. You can view the blog at www.employmentlawtoday.com.

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