Canadian Employment Law Today

March 25, 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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with Tim Mitchell Ask an Expert MCLENNAN ROSS LLP, CALGARY 2 | March 25, 2020 Canadian HR Reporter, 2020 Have a question for our experts? Email jeffrey.smith@keymedia.com Answer: There is no question that employee ab- sence and tardiness can be disruptive and even prohibitive to running a business. Employers are entitled to expect their employees to at- tend for work, during agreed-to hours of work, and complete the work that the employee has been hired to do. When an employee is absent or late, employers are not required to pay the employee for work they did not perform. How - ever, an employer cannot force an employee to take a partial vacation day when an employee is significantly late. This is regardless of whether the employee is late due to transit or traffic de- lays or other less-justified reasons. Vacation days are intended to give employ- ees a break from their employment. Many ju- risdictions permit vacation days to be taken in half-day increments if agreed to by the em- ployer and employee. In some jurisdictions, the employer can force their employees to take their vacation days, but advance notice must be provided. Given that advance notice must be provided, employers cannot force their em - ployees to take their vacation days when they are significantly late. That said, employers are not required to pay employees for work that has not been complet - ed. While forced vacation days are not an op- tion, employers can seek other forms of redress. They may choose to deduct this time from the employee's hours of work or expect the late em- ployee to make up those "missed" hours at a later time. Despite not being able to force employees to take vacation days, employers may take other disciplinary measures against employees for being significantly late. Employers may un - dertake progressive discipline. Lateness will not generally fall into the category of serious misconduct warranting immediate dismissal. However, persistent lateness, in combination with progressive discipline, may sustain a ter - mination from employment. As in all discipline cases, the circumstances of a specific incident must be considered. For example, where an employer enquires into an employee's lateness and the employee blames abnormal transit or traffic delays, the employ - er may view this as a legitimate justification not warranting discipline. If the employee continues to show up late and continues to blame transit or traffic, the employer may rea - sonably view this as a less-legitimate justifica- tion that may warrant warnings and further disciplinary action. Further, when determining appropriate dis- cipline, the employer must consider both the employment contract and relevant policies, as well as ensure that the discipline is appro- priate in the circumstances by asking the right questions. Asking questions regarding the cir- cumstances of lateness may uncover alternate reasons related to the employee's health and family. These may trigger accommodation ob- ligations under human rights legislation. No- tably, employees have an obligation to make their employer aware if lateness or absentee- ism is a result of illness, medical conditions or childcare or family obligations as an employer cannot accommodate without knowledge of the situation. Employers should make their expectations clear by attending work on time or providing advance notice of lateness or illness. Tardiness issues should be immediately and consistently addressed with an offending employee; how - ever, the employer's response to an employee's lateness must be decided in view of the facts specific to that employee. Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or tmitchell@mross.com. Question: Can an employer discipline an employee or force them to take a partial vacation day if abnormal transit or traffic delays make them significantly late? Notice of retirement Question: Can an employer require a certain amount of notice of an employee's intention to retire? Are there any legal requirements for the notice requirement? Answer: Retirement is one way that an employ- ment contract can be terminated by an employ- ee. Employees are expected to provide reason- able notice of their intention to retire just as they would be expected to if they were resign- ing. The primary purpose behind the notice re- quirement is to allow an employer a reasonable opportunity to hire and train a replacement or make arrangements to minimize any loss or dis- ruption to its business operations. The requirement for employees to provide notice of their intention to retire can be in both statute and at common law. For example, the Alberta Employment Standards Code specifies that an employee that has been employed more than 90 days but less than two years must give at least one week's notice. Employees that have been employed for two or more years must give at least two weeks' notice. Similar employment standards legislation exists in every jurisdiction. In addition to the minimum standards speci - fied in provincial employment standards legisla- tion, the amount of notice required from em- ployees that intend to retire may be lengthened by the employment contract. While there is not a cap on the amount of time an employer can re- quire as retirement notice, employers should not implement, or attempt to enforce, unreasonable contractually required notice periods. Courts have been clear that the notice periods required of departing employees are not the same length as the notice required of employers when termi - nating employees. Factors that the employer may want to consider are: the nature of the employ- ee's position, the length of the employee's service and what amount of time it may reasonably take to hire and train an incumbent. The appropriate notice period would be different for an hourly laborer versus an executive of a company. Similar to resignation, an employee's notice of their intention to retire must be clear, un - equivocal and voluntary. It must objectively re- flect the intention to resign. Casual discussions regarding an employee's intention to retire will generally not be considered clear and unequivo- cal. Moreover, forced or mandatory retirements will not be considered voluntary and may be in violation of human rights legislation. Further, employers may consider imple - menting appropriate policies regarding notice of retirement that specify the amount of notice required, the requirement of getting the notice in writing, meeting with the employee and dis - cussing next steps (similar to an exit interview). While an employee may be entitled to change their mind before their retirement date, only if the employer has not already detrimentally re - lied on the expressed intention to retire, taking formal steps to recognize and process the retire- ment may help establish that notice was clear, unequivocal and voluntary. Overall, employees wishing to retire must be aware of the minimum statutory notice require- ments to end the employment contract and adhere to any contractually stipulated notice requirements.

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