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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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo - copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment Law Today Canadian www.employmentlawtoday.com Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. Shorter stint than expected for Ontario worker THIS EDITION of You Make the Call features a dispute over the length and notice entitlement for a fixed-term construction project. Jacques Mineault was a boilermaker who in September 2014 was offered a general foreman position by E.S. Fox Limited, a multi-trade construction company based in Niagara Falls, Ont., at Fox's Vault Containment and Confine - ment Dryer site at the Darlington, Ont. Nucle- ar Power Plant. Fox contracted with Ontario Power Generation to provide construction ser- vices at the plant. Fox told Mineault when it made the offer that the project would run through the fall of 2014 and it expected the project to be extended into the late spring or early summer of 2015. It was Mineault's first time serving as a general foreman, but he had worked on several proj - ects before and each time the position was for the duration of the project. He accepted the of- fer and started working on Sept. 15, 2014. However, Fox's intention was for Mineault to work in the general foreman role until an- other Fox employee was trained for the posi- tion — which Fox expected would take 12 weeks. The company filed a requisition form with the Electrical Power Systems Construc- tion Association (EPSCA) — the association of construction companies performing work at Darlington — indicating it needed the general foreman position it offered Mineault for a pe- riod of six to 12 weeks. On Dec. 9, Fox's superintendent on the project asked Mineault if he could take on additional supervisory duties, but Mineault declined. Ten days later, on Dec. 19, Fox termi - nated his employment. Mineault sued for wrongful dismissal seek- ing damages covering lost pay and benefits until he found a new job three months after his dismissal. Fox countered that Mineault was covered by a collective agreement between Mineault's union — the International Brother - hood of Boilermakers (IBB) — and the EPSCA that had no requirement of notice or compen- sation upon termination other than four hours' notice or wages in lieu of notice. It was custom- ary in the industry for the terms of conditions of work for the general foreman position to be covered by the collective agreement and only the salary was negotiated separately, Fox said. Mineault argued that he wasn't part of the collective agreement and, therefore, entitled to common law reasonable notice. The collective agreement had a recognition clause that set out the bargaining unit as including "foreman, assis - tant foreman, journeyman and apprentices," but it didn't mention the role of general foreman. Emplo y ment Law Today Canadian www.employmentlawtoday.com YOU MAKE THE CALL Was the worker wrongfully dismissed? OR Was the company allowed to dismiss the worker and provide the collective agreement notice entitlement? IF YOU SAID Mineault was wrongfully dis- missed, you're right. The court found that while Fox may have intended for Mineault to only work for a 12-week period while an- other general foreman was traded, this wasn't communicated at the time of the job offer. Normally in such circumstances, jobs were for the duration of the project and Mineault assumed that was the case. Fox didn't indicate otherwise — the discussion leading to the job offer involved mostly compensation — and the company even told Mineault the project would likely be extended a few months into 2015. This further led Mineault to believe he was on board for the duration of the project and for all intents and purposes he was hired on a "fixed-term contract from the duration of the project," said the court. The court also found that Mineault was not subject to the collective agreement's termina - tion provision. In addition to the collective agreement not expressly including the general foreman position, there was no evidence Fox communicated to Mineault that the collective agreement's provision would be incorporated into his own fixed-term contract with the com - pany. Although the collective agreement terms were used as a base for salary and other terms, it wasn't made clear that the termination pro- vision was an implied term of the general fore- man fixed-term contract and, therefore, there was no provision denying the common law notice entitlement, said the court. Since Mineault found new employment three months after his dismissal — in late March, a couple of months before Fox's proj - ect was completed — Fox was ordered to pay Mineault damages in lieu of notice for the three-month period for which he was unem- ployed. The total damages owing was just over $50,000. For more information, see: • Mineault v. E.S. Fox Limited, 2019 ONSC 3747 (Ont. S.C.J.). Previous jobs had lasted for the duration of the project.

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