Canadian Employment Law Today

Canadian HR Reporter, 2020 4 CASE IN POINT: UNJUST DISMISSAL Temp services not employment relationship: Adjudicator Worker needed 12 months of employment to file unjust dismissal claim under Canada Labour Code, but 10 of 18 months spent at bank were assignment from temp agency BY JEFFREY R. SMITH T he Canada Labour Code allows feder- ally regulated employees to make un- just dismissal claims, but only if they have 12 months of employment. A former Bank of Canada employee discovered that time providing services with a temp agency doesn't count toward that time because it was the agency that employed her. The Bank of Canada has an agreement with Excel Human Resources — a human resources recruitment and staffing company — in which the latter provides temporary workers to fill roles when needed. The bank tells Excel the details on the temporary work and the type of worker needed to perform it, and Excel then advertises and recruits job candidates to fill those needs. Excel inter- views and screens candidates and when one is found to match the bank's stated needs, it presents the candidate to the bank. If the bank determines the candidate is accept- able, Excel hires the worker and places her with the bank to perform the required job the bank needs. In August 2016, Denise Ma applied for an internal position with Excel but was un- successful. Excel tried to place her in several assignments with various clients, but none made it into placements. In late November, Excel suggested Ma as a candidate for an ad- ministrative assistant position at the bank, so the bank arranged an interview with its representatives. The bank found Ma was qualified for the position and reached a tem- porary help assignment with Excel. As with other Excel candidates, Ma con- sented to a written candidate pre-screening agreement that stated the goal was "employ- ment" with Excel and a corresponding "as- signment" to a client. The agreement stated that Ma was a candidate for employment with Excel. Ma began providing services to the bank on Dec. 12, 2016. Excel and the bank formal- ized an agreement of engagement and re- lease order confirming a "call up of services" under a professional services sourcing agree- ment between the two entities. The agree- ment of engagement included the terms and conditions of Ma's temporary placement and the larger sourcing agreement guaran- teed continuous services during the assign- ment — if Ma became unable to perform the services of the assignment to the bank, Excel would have to replace her. At the same time, Excel implemented a work assignment and employment agree- ment that outlined Ma's pay and Excel's health and safety handbook. The bank paid Excel during Ma's placement and Excel paid Ma's wages. Excel required Ma to complete online accessibility training before starting and Ma completed timesheets through Ex- cel's online services. Ma's job duties included creating candi- date files and doing credit checks. She worked in bank offices with a laptop, telephone and email address supplied by the bank. During the assignment, Excel occasionally checked with the bank to see if the bank was satis- fied with Ma's performance — which the bank was. Other than Ma submitting her timesheets, there was little contact between her and Excel during her placement. Ma's first placement ran for four months and was extended another month. The bank and Excel extended the placement two more times, eventually running it to Dec. 31, 2017. With each extension, the bank and Excel signed a fresh letter of engagement and Ma signed a fresh work assignment and employ- ment agreement. From temp to full-time In October 2017, Ma successfully applied for a permanent administrative position at the bank with job duties similar to her assign- ment through Excel and with the same team, resources and manager. She informed Excel that she had found a permanent position — but didn't reveal it was with the bank — and said she would be resigning effective Oct. 25. On Oct. 26, Ma entered into an employ- ment agreement with the bank running for one year until Oct.26, 2018 and continued her duties, this time paid directly by the bank. She had no further involvement with Excel once the company paid her final paycheque. In December 2017, the manager under whom Ma had been working went on mater- nity leave and was replaced. Things didn't go as well under the new manager and, on June 18, 2018, the bank terminated Ma's employ- ment, citing performance issues. The bank provided her with the minimum notice en- titlements under the Canada Labour Code, as stipulated by the employment agreement. Ma went back to Excel and was placed with other clients. However, she filed an unjust dismissal complaint under the code, which doesn't allow dismissal without cause. The bank argued that Ma couldn't file an unjust dismissal complaint, as the code only allows employees who have "completed 12 consecutive months of continuous employ- ment" prior to the termination to file such a complaint. Ma had only been its employee for less than eight months — since Oct. 26, 2017. Prior to that, Ma was an employee of Excel on a temporary work placement, said the bank. Ma maintained that she had essentially been an employee of the bank since Dec. 12, 2016, performing the same work with the same team since then. Ma argued that the bank was trying to "have its cake and eat it, too" by benefitting from her work but taking on no responsibilities of an employer. Temp agreements common The adjudicator found that there was no reason to believe that the bank and Excel entered into an arrangement with the The worker resigned her employment with the agency after accepting employment with the bank. Recruitment and staffing agencies are fairly common in the business world. Agreements between such agencies and companies allow the latter to find workers for temporary assignments and workers with the agencies to find regular work for a time when they might not be able to find it. But how should the employment relationship be viewed when the temp worker joins the client company for good? BACKGROUND

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