Canadian Employment Law Today

February 26, 2020

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 | February 26, 2020 with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Canadian HR Reporter, 2020 Have a question for our experts? Email jeffrey.smith@keymedia.com Answer: Many employers have vacation policies that provide employees with vacation periods or procedures that confer a greater benefit than the statutory minimum. For the purposes of this ques- tion, such vacation entitlement constitutes a ben- efit and, thus, a term of the employee's employ- ment contract. Accordingly, if an employer makes a unilateral change to a vacation entitlement that reduces its benefit, there is a risk that the employer has con- structively dismissed that employee. Broadly put, constructive dismissal arises in a circumstance where an employer makes a unilat- eral and fundamental change to a term of an em- ployee's employment. The effect of such a change is the repudiation of the contract of employment. The question of what constitutes a "fundamen- tal" change depends on the nature of the change being made. If a change to a vacation entitlement results in an employee losing a significant number of vacation hours, that change may be character- ized as fundamental. Accordingly, in order to limit liability arising from a reduction of a vacation entitlement, it is ad- visable for an employer to provide advance notice of that reduction. Many Canadian employment statutes specify that an employee who is terminated without cause is entitled to either written notice and/or pay in lieu of notice. An employer should base notice of a reduction of a vacation entitlement on the longest period of notice provided by the relevant statute. For example, if the longest period of notice that the relevant statute provides is for eight weeks, an employer should provide affected employees with notice of the vacation entitlement reduction eight weeks in advance of the change coming into effect. Adopting such a timeframe will assist in re - sponding to an allegation of constructive dis- missal, regardless of the notice period to which the employee may be entitled. If an employee subsequently argues that a reduction in vacation entitlement constitutes constructive dismissal, the employer can respond that the employee was provided with required (and perhaps extra) written notice to lawfully effect that dismissal. Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or lschatz@mltaikins.com. Notice of vacation policy changes Question: Is there any advance notice requirement for informing employees about a change in vacation policy regarding carryover entitlements or when they can take vacation? Increased workloads and mental stress Question: If an employer makes changes that significantly increase employee workloads with no additional compensation and some employees express concern over the mental stress this will cause, does that raise liability for an unsafe workplace or create the risk for work refusals? Answer: Significantly increasing an employ - ee's workload may subject an employer to legal liability for constructive dismissal. Gen- erally speaking, constructive dismissal occurs when there has been a fundamental breach by the employer of the employee's contract of employment. The law has long recognized that when an employer unilaterally makes substantial changes to the essential terms or conditions of an employee's employment con - tract without the employee's consent and the employee leaves their job as a result of such changes, the employee has not resigned but has been constructively dismissed. This may entitle the aggrieved employee to common law damages. The test for whether an employee has been constructively dismissed is an objective one and is essentially a question of fact. There have been many cases in which an increased workload or a change in the employee's responsibilities has been found to constitute a fundamental breach of the employee's contract of employment. The extent of the employer's ability to make changes will depend on what the parties agreed to when they entered into the employment contract. If the additional work being requested by the employer is outside the scope of the employee's duties, the employee may be well within their rights to refuse such work. Alternatively, an em - ployee may react to an increased workload by demanding an increase in pay or proceeding to take a stress leave. In addition, requiring unqualified em- ployees to perform safety-sensitive work may subject an employer to liability for an unsafe workplace. Employers have a general duty un- der occupational health and safety (OH&S) legislation to maintain a safe workplace. Em- ployers also have more specific duties under OH&S legislation, such as the duty to provide all workers with such information, instruc- tion, training, supervision and facilities to ensure the health, safety and wellness of work- ers while at work. While employees are also subject to OH&S requirements, the employer is generally responsible for ensuring compli- ance with the relevant legislation. Employers should ensure that employees are properly trained and equipped to handle additional duties resulting from an increased workload. The extent of the employer's ability to make changes will depend on what the parties agreed to when they entered into the employment contract. In order to limit liability arising from a reduction of a vacation entitlement, it is advisable for an employer to provide advance notice of that reduction. 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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