Canadian Employment Law Today

September 9, 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 fea- tures an employee who wanted more on-call pay. Kenneth MacAulay was a community coroner for the British Columbia Coroner's Service. His job was to gather information from certain sites where someone died and compile reports from that information. At that point, he would turn over responsibility for the investigation to a full-time coroner. MacAulay's position was on a casual ba- sis and he was based out of his home. The B.C. Coroner's Service equipped him with a cellphone, laptop computer, printer and office supplies to use at home. The Coro- ner's Service assigned him cases through text messages on his cellphone and he had the opportunity to accept or reject the assign- ments. If he didn't respond to a text within 15 minutes, the Coroner's Service would call him. If he still couldn't be reached, the Coro- ner's Service would either try again or assign someone else to the case. Upon acceptance of a case, the Coroner's Service paid MacAulay from the time of his response until his duties were completed, with a two-hour minimum. In February 2019, MacAulay filed a com- plaint with B.C.'s Director of Employment Standards claiming the Coroner's Service had failed to pay him wages. He argued that he was on call for the entire day, every day that he was on duty and should be paid for that time. He said that, unless he booked a day off, he was expected to be available as needed 24 hours per day, seven days per week. During the time he was on call, the Coroner's Service controlled him and he had significant restrictions on his activities — he couldn't drink alcohol because the Coro- ner's Service has a zero-tolerance policy, for example — and mobility — there were many "dead zones" for cellphone reception in his region, so he was unable to travel to those areas while on call for activities such as fish- ing. Because of the restrictions on his mobility and activities and the control the Coroner's Service had over him, MacAulay maintained that he was entitled to wages for time spent on call. He also pointed to the Employment Standards Branch's Interpretation Guide- line Manual for on-call employees, which states "an employee can be 'on-call' virtually anywhere and need not be at a specific loca- tion designated by the employer. When the employee responds to a page or a cellular call, the employee has in effect, 'reported' to work and is entitled to minimum daily pay." MacAulay argued that any day he didn't book off with the Coroner's Service was an automatic report to work. YOU MAKE THE CALL Should MacAulay be paid for the time he was on call? OR Should MacAulay be paid only for the time he was assigned to a case? IF YOU SAID MacAulay should be paid only for the time he was assigned to a case and not for the rest of the time he was on call, you're correct. A delegate from the B.C. Di- rector of Employment Standards found that the equipment provided to MacAulay by the Coroner's Service allowed him to leave his home while he was on call and MacAulay could do much of his daily activity in the community without restrictions. Although MacAulay was right in that he couldn't go to more remote areas that didn't have cell- phone service or consume alcohol while he was on call, these restrictions weren't "suf- ficiently stringent" to bring his on-call time at home within the definition of "work" un- der the B.C. Employment Standards Act — which included the statement "an employee is deemed to be at work while on call at a location designated by the employer unless the designated location is the employee's residence." MacAulay appealed to the province's Em- ployment Standards Tribunal. However, the tribunal found the statutory definition of work is clear in excluding employees who are on call at their own residence, comment- ing that "the fact that the employer provided [MacAulay] with certain devices to assist him with being on call does not have the effect of converting his residence into an office." The tribunal noted that earlier decisions had also confirmed that "on-call employees who are not required to remain in a location designated by their employer are not 'work- ing' and thus their 'on call' time is not com- pensable 'work' as defined in section 1 of the ESA." For more information, see: • Kenneth A. MacAulay (Re), 2020 BCEST 31 (B.C. Emp. Stdrds. Trib.). On-call employee wants to be on the clock The worker was based out of his home and was supplied with a cellphone and a computer An on-call employee is not at work if they are at their residence.

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