Canadian Employment Law Today

Canadian HR Reporter, 2020 April 8, 2020 | Canadian Employment Law Today purpose of avoiding the unjust dismissal claim entitlement in the code. The two entities had "an arrangement to distribute the attributes of employment in a way that would make Excel the employer and the bank a client for all purposes" — an arrangement that was common in "tripartite" temporary help arrangements involving agencies that employed people to perform work for clients and were "a common, accepted and legitimate feature of the modern business world," said the adjudicator. The adjudicator noted that such tripartite arrangements put the burden of an employ- ment relationship on the agency and allow the client to "eat cake" by receiving the bene- fits of the employment relationship and pay- ing the agency for it, but such arrangements were not at odds with the objectives of the unjust dismissal remedy in the code. The adjudicator also noted that such an arrangement can be abused or used to inap- propriately mask situations where the client is the true employer, but such circumstances would have to be determined through exami- nation of the "attributes of employment." In Ma's situation, Excel was the employer during the temporary placement with the bank, the adjudicator said. Excel recruited Ma in a process that started months before she started working at the bank, including interviews, screening and online training. The bank didn't follow any of its own recruit- ment processes and only reviewed Excel's recommendation and interview of Ma for the purposes of the temporary placement. Ma was an employee of Excel — which tried to put her in other placements before the bank — before she was assigned to the bank, said the adjudicator. In addition, the adjudicator pointed out that Ma signed agreements making it clear she was applying for employment with Excel, was given Excel policies and training and was paid by Excel. There was "no misapprehen- sion that she was entering into a formal writ- ten employment agreement with Excel and not the bank," said the adjudicator. While Ma argued that Excel didn't actively manage her performance and she had little contact with the company during her place- ment, the adjudicator found that the bank was satisfied with her performance and Excel had no reason to interfere — there was no need for performance management or disci- pline by either Excel or the bank. In fact, the sourcing agreement between them stipulated that the bank should contact Excel for any problems and Excel would follow up or re- place Ma if necessary. The adjudicator found that while the bank supervised Ma, assigned her day-to-day duties and partially integrated her into its operation, it was Excel that assigned her to perform duties at the bank for a fixed term as part of the work assignment and employ- ment agreement — "that is what would be expected in a tripartite temporary help ar- rangement where an agency's employee is parachuted into a client's organization to temporarily perform clerical work." The adjudicator further found that Ma un- derstood her employment situation when she accepted the permanent position with the bank. She provided Excel with notice of resignation and entered into an employment agreement with the bank in October 2017. At that time, her tenure as a bank employee began — meaning she had eight months of employment with the bank, not enough to entitle Ma to the right to file an unjust dis- missal claim under the code. "In and about the first 10 months [Ma] provided services, all three parties behaved in a way that was consistent with the expecta- tion that termination obligations and rights were focussed on Excel," the adjudicator said. "Changing that expectation now by recogniz- ing the bank as [Ma's] employer would un- fairly impose obligations around respecting rights of dismissal in a way that none of the parties expected at the time the tripartite tem- porary help arrangement was entered into, was functioning and came to an end." For more information, see: • Ma and Bank of Canada, Re, 2020 CarswellNat 65 (Can. Lab. Code Adj.). ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com, or visit www.employmentlawtoday.com for more information. CREDIT: PORTISHEAD1 ISTOCK

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