Canadian Employment Law Today

July 15, 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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©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, photocopying, 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 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 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. THIS EDITION of You Make the Call involves an Ontario worker who claimed constructive dismissal following a notice of recall after a temporary layoff. Rainbow Concrete Industries is a manufac- turer of concrete products based in Sudbury, Ont. Rainbow hired Trevor Grace in March 2008 to work in the company's construction of "pre-cast" concrete products at its North Bay, Ont., location. His employment agree- ment didn't include any mention that the job was of a seasonal nature or for an indefinite term. However, the amount of pre-cast concrete work changed over the course of the year, as the season began in the spring as temperatures warmed and ebbed late in the year as winter arrived. As a result, pre-cast workers such as Grace had a period from December to about April where there was little work for them. During the winter slow period, Rainbow laid off pre-casting workers. Each time they were laid off, their pay rate remained the same with the possibility of a small increase based on annual reviews. Each year, Rainbow provided a record of employment (ROE) that stated "shortage of work/end of contract or season" as the reason for issuance along with an unknown recall date, as it varied each year. Rainbow continued to provide benefits to Grace during the layoff period, with the ex- ception of 2017 when Grace didn't return to work with Rainbow. He rejoined the company when pre-cast work resumed in 2018. In 2018, Grace started work in June and was laid off on Nov. 2. Rainbow gave him two weeks' notice of the layoff but asked him to work at the company's Sudbury location for those two weeks — the company said that it was temporarily suspending operations in North Bay and consolidating all activities in Sudbury due to a slowdown in business. This was difficult for Grace because Sudbury was a one-and-one-half-hour drive away from North Bay and he didn't have a driver's licence or vehicle. However, since it was only for two weeks, he managed to get to Sudbury for those two weeks. When the layoff began, Rainbow issued an ROE as usual. On April 18, 2019, Rainbow recalled Grace for production that was returning to "full force." However, the company said the work it had for him was still in Sudbury and if he failed to report it would consider him to have resigned. Grace inquired if there would be a compa- ny van to transport workers from North Bay to Sudbury and if he would be paid for travel time, but Rainbow responded by saying there was no work in North Bay "for now," no com- pany van and no pay for travel. Grace didn't report to work in Sudbury and filed a claim for constructive dismissal. On June 25, Rainbow informed Grace that it was reopening the North Bay location and he was welcome back to work there on July 8. Once again, it said that if he didn't respond it would assume he had resigned. Grace didn't respond as he had already filed his construc- tive dismissal claim. YOU MAKE THE CALL Was the worker constructively dismissed? OR Was there no constructive dismissal? IF YOU SAID the worker was constructively dismissed, you're right. The Ontario Labour Relations Board found that Rainbow's decision to relocate Grace "amounted to a fundamental change to the employment contract that was substantial and adverse to him." Other than the two weeks before he was laid off in 2018 — which Rainbow characterized as a temporary arrangement — Grace had only worked at the North Bay location since he was hired in 2008. There was also no evidence that the company had ever advised Grace that a relocation was possible, said the board. The board noted that Grace didn't have a driver's licence or vehicle, of which Rainbow was aware when Grace asked about transporta- tion assistance. The daily commute would be at least three hours with a vehicle and even longer and more complicated without one. The board also found that there was nothing in the April 2019 recall notice that indicated how long he would be expected to work in Sudbury. Although it eventually reopened the North Bay location two months later, Grace had already effectively resigned and would have lost two months of work anyway. "The employer gave Mr. Grace no choice in the matter; the employer advised him that should he not report to the Sudbury location, it would consider him to have resigned," said the board. The board also dismissed Rainbow's claim that Grace was exempt for the termination and severance pay provisions of the Ontario Employment Standards Act, 2000 because his employment was for a definite term each year. Since Grace continued to receive benefits, his employment continued during the temporary layoff. In addition, there was no indication in his employment contract that his employment was for a definite term. For more information, see: • Rainbow Concrete Industries Ltd. v. Grace, 2020 CarswellOnt 6208 (Ont. Lab. Rel. Bd.). Concrete reason for relocation of employee's job? The new location was a 1.5-hour drive away and the worker didn't have a vehicle.

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