Canadian Employment Law Today

August 29, 2018

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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Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2018 2 | August 29, 2018 Returning to work after job protected leave Question: If an employee returns from job protected leave, what are the employer's options and liabilities if it prefers to keep the replacement in the job and move the returning employee to a different position or department with similar pay? Returning to work after job protected leave Question: what are the employer's options and liabilities if it prefers to keep the replacement in the job and move the returning employee to a different position or department with similar pay? with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER 2 | August 29, 2018 Answer: Under employment standards legislation in each Canadian jurisdiction, employers are required to provide their employees with certain types of leave, such as pregnancy and parental leave, bereave- ment leave, and compassionate care leave. As these leaves are statutorily protected, the employee will in most cases be entitled to re- turn to her job at the end of the leave. Under some circumstances, an employer may be entitled to move an employee who is returning from job protected leave to a dif- ferent position. is must be done carefully, to ensure compliance with the applicable legislation. As the requirements diff er in each jurisdiction, employers should review their statutory obligations before taking ac- tion. In British Columbia, for example, the Em- ployment Standards Act states that where an employee returns from job protected leave, the employer must place the employ- ee in the position she held before the leave, or in a comparable position. Determining whether a position is "comparable" depends on the circumstances. Relevant factors may include, but are not limited to, job title, job duties, reporting relationships, status as per- ceived by employees and others, pay, ben- efi ts, hours of work, location of work, type of offi ce/workstation, and availability of equip- ment. An employer may not be required to re- turn an employee to her previous position or a comparable position if no such posi- tion is available as a result of a legitimate reorganization of the employer's business. In John Ladd's Imported Motor Car Co, Re, the employer restructured its operations while the employee was on pregnancy and parental leave, due to the retirement of one of its managers. e employee's position was eliminated as part of the restructuring and her job functions were distributed among several other employees. When the employ- ee returned from leave, the employer told her no position was available, terminated her employment, and provided her with sever- ance compensation. e B.C. Employment Standards Tribunal ruled that the employer was not required to return the employee to work, as there was no position available for her as a result of a legitimate reorganization. Similarly, in Flint (Re), the tribunal ruled it was unreasonable to impose a duty on an employer to provide the same or comparable employment at the end of a job protected leave, where the business of the employer had undergone signifi cant changes such that no such position was available. e tribunal noted that otherwise, this would place the employee who took statutory leave in a bet- ter position than employees who continued to work during the leave period. e essential principles of job protected leave are similar in other Canadian jurisdic- tions, but the specifi c requirements vary. In Alberta, for example, Employment Stan- dards Code provides that if an employee who has taken maternity and/or parental leave fails to give the employer at least four weeks' notice of her intention to return to work at the end of the leave, the employee is not entitled to resume work unless the failure to provide the notice resulted from unfore- seeable or unpreventable circumstances. In British Columbia and Ontario, however, an employee's right to return to work from job protected leave will not be lost in these cir- cumstances. For more information see: • John Ladd's Imported Motor Car Co., Re (Dec. 9, 1996), BC EST #D313/96 (B.C. Emp. Stndrds Trib.). • Flint (Re) (Nov. 1, 2000), BC EST #D477/00 (B.C. Emp. Stndrds Trib.). Poor performance evaluation: Is it a warning? Question: If an employee receives a poor performance evaluation, does the employer have to specifically state the employee's job could be in jeopardy if the employee doesn't improve, or is it implied? Answer: If an employer has just cause for an employee's dismissal, it will usually have the right to terminate the employment relation- ship without notice or severance pay. Just cause is diffi cult to prove. It will ex- ist where the employee has engaged in seri- ous misconduct that has violated an essen- tial condition of the employment contract, breached the faith inherent in the work re- lationship, or that was fundamentally or di- rectly inconsistent with the employee's obli- gations to the employer. e employer bears the onus of proving just cause. e more se- rious the allegation, the higher the standard of proof that will be required. In most cases, a single incident of mis- conduct will not be just cause unless it is ex- tremely serious. To succeed with a just cause argument in cases involving less serious misconduct or unsatisfactory performance, the employer must establish that reasonable standards of performance or behaviour were established and communicated to the em- ployee, proper training and supervision were provided, the employee was given a suffi cient period of time to meet the standards, the em- ployee was clearly and adequately warned that continuing failure to meet the standards would result in dismissal, and the employee continued to fail to meet the standards. In most cases, a clear and unequivocal warning will be required before an employer will have just cause to dismiss an employee without notice or severance pay. A warning establishes the required standards of perfor- mance or conduct, and places the employee on notice that her employment is in jeop- ardy, such that termination will follow if the necessary improvements are not achieved. A warning does not have to be in writing. But given the signifi cance of the warning and the potential consequences if the employee does not improve, it is best practice for an employer to place the warning in writing. is also removes the possibility of misun- derstandings or disputes regarding the con- tent of the warning, or whether it was pro- vided. Clarity and fi rmness are appropriate in this kind of situation, not subtlety. In most cases, a performance review that identifi es strengths and weaknesses and in- dicates improvements are required in cer- tain areas will not be considered a suffi cient warning to justify a subsequent dismissal for cause. If the employer believes the em- ployee's performance or conduct has dete- riorated to the point where dismissal will be necessary if the defi ciencies continue, a clear and specifi c warning should be provided. In Coles v. Dentech Products Ltd., for ex- ample, the court ruled that poor employee evaluation reports did not provide "the necessary clear warning that he had to take steps to avoid dismissal for unsatisfactory WARNING NEEDED on page 7 »

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