Canadian Employment Law Today

September 23, 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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Answer: As some parts of society begin to gradu- ally reopen, many employers are facing chal- lenges with respect to bringing employees back to work and providing those employees with meaningful work. Some employers have consid- ered asking employees to stay home with pay (or reduced pay) but without work. Fundamentally, such a circumstance is a suspension of duties with pay. We often see this scenario when employees are placed on administrative leave pending the outcome of an investigation, but a suspension of duties with pay is becoming a more attractive op- tion to some employers that continue to feel the impact of the COVID-19 pandemic. An important risk for employers to consider when directing employees to stay at home is whether that decision might constitute con- structive dismissal. Constructive dismissal occurs when an employer demonstrates through chang- es to an employee's terms and conditions of em- ployment that it no longer intends to be bound by the employment contract. Even if an employ- ee continues to be paid while at home but not working, those employees may be able to argue that the employer has effectively ended the em- ployment relationship by removing their duties, responsibilities and right to work. While there is some expectation that courts will be mindful of employers' struggles to pro- vide work in a global pandemic, a line must be drawn somewhere. A lengthy, indefinite sus- pension of an employee's work may constitute constructive dismissal, even if the employee con- tinues to be paid, especially if the suspension per- sists after a business' operations return to normal (or the new normal). In assessing whether a suspension of duties is wrongful (amount to constructive dismissal), a court will consider a number of non-exhaustive factors, including whether the suspension: • Resulted in someone replacing the suspend- ed employee; • Is for a limited, lengthy or indefinite dura- tion; • Is with or without pay and benefits; • Is defensible by legitimate business reasons; and/or • Was undertaken in good faith. Notably, if an employer can obtain an em- ployee's explicit consent to keep them at home indefinitely with pay, that would amount to a full defence to a constructive dismissal allegation. Employers should generally try to maintain contact and provide updates to the employ- ee. Additionally, employers should make it clear that, while the employee is receiving pay, that employee should be readily available to work on an as-needed basis; and employers should en- deavour to provide meaningful work when able. A reminder that if the employment relationship is eventually terminated on a without-cause basis, the employee would become entitled to notice or pay in lieu of notice and the period of time that the employee's duties were suspended would not count toward assessing a reasonable notice period. Ask an Expert Have a question for our experts? Email MCLENNAN ROSS LLP, CALGARY with Tim Mitchell Keeping employees home with pay Question: Can an employer keep employees home and not working indefinitely if it is still paying them? Canadian HR Reporter, 2020 2 | | September 23, 2020 September 23, 2020 Answer: While the COVID-19 pandemic has made the operation of workplaces more com- plicated, it has also opened the door to a va- riety of new technologies that can be used to conduct day-to-day business, which would include investigations. Investigators are now us- ing video-conferencing technologies to run in- vestigations, allowing employees to stay at home safely. At the outset of a remote investigation, inves- tigators will need to establish investigation pro- tocols, such as: • Type of technology: An investigator will need to decide between teleconference or video- conference technology. Videoconferences are typically preferable as they allow the investi- gator to assess the conduct and credibility of participants and to ensure that any confiden- tiality protocols are maintained. • Recordings: The investigator will need to determine if and how it will record the inter- view and to ensure that interviewees are not surreptitiously recording the investigation. • Confidentiality: Remotely conducted interviews pose challenges to the creation and preservation of an interview environment that sufficiently protects confidentiality. In- vestigators should advise participants that recording of the investigation and the pres- ence of unauthorized individuals are strictly forbidden. In addition, investigators should advise participants to close all other windows on their computers. An investigator may find it useful to ask an individual participant to go to a private room or use headphones to avoid potential confidentiality issues. Most impor- tantly, investigators should watch for these issues carefully during the investigations and address them immediately as they arise. •Remote document collection: It may be challenging to collect relevant hard-copy documents while travel restrictions remain in place if electronic documents are not feasible. Investigators should document the collection process and consider additional data protec- tion protocols. The following practical considerations are also important: • Making sure the participant is comfortable and familiar with the technology will help eliminate issues with connectivity and reduce delays. In cases where the participant would like a supporter present, it is best to use a technology that will allow the participant to meet privately with their supporter. • Interviewees should participate in a private space with no distractions, and investiga- tors should be flexible to accommodate the interviewees' schedules. • If the interviewee requests and is permitted a support person, the video-conferencing platform should permit those parties to virtu- ally meet in a separate "room" without the interviewer present. The development of video-conferencing soft- ware technologies has the potential to streamline the investigation process and save on travel and accommodations. If investigators take proac- tive steps to ensure the reliability of these pro- cesses, investigations should be able to proceed smoothly and conduct a thorough and impartial investigation. Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or tmitchell@ Conducting investigations remotely Question: How should a reasonable investigation into a harassment complaint be carried out if most of a company's employees are working from home due to the pandemic?

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