Canadian Employment Law Today

CELT May 15 2013.qxp:celt 467.qxd 13-05-02 9:49 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS MAY 15, 2013 Overtime class actions given green light Supreme Court of Canada will hear claims by Scotiabank and CIBC employees they are routinely required or permitted to perform in order to complete the ON MARCH 21, 2013, the Supreme Court common duties of their positions." of Canada ruled for the first time that In both cases the employees "allege employee class actions for pay for "off that the overtime policies of the defenthe clock" overtime work can proceed dant banks conflict with private law under the Class Proceedings Act of duties owed by the banks to the Ontario. employees who comprise the proposed In Fulawka v. Bank of Nova Scotia classes. The overtime policies required and Fresco v. Canadian class members to obtain Imperial Bank of Comprior approval from a EMPLOYMENT merce, the employees manager in order to be STANDARDS relied on the Canada compensated for overLabour Code, which time work that they were requires employers to pay, at mini- required or permitted to perform. Such mum, 1.5 times an employee's normal a pre-approval requirement, the plainhourly rate for overtime hours that an tiffs assert, is contrary to the s. 174 of employee is "required or permitted" to the code, which, they submit, informs work. the private law duties owed to the class In Fulawka, the employee alleged members." that Scotiabank's policies and pracSection 174 of the Code states: tices for compensating overtime work "When an employee is required or performed by employees — members permitted to work in excess of the of the putative class she was repre- standard hours of work, the employee senting — constituted both a breach of shall … be paid for the overtime at a class members' contracts of employ- rate of wages not less than one-andment and a breach of Scotiabank's obli- one-half times his regular rate of gation to act in good faith. On behalf of wages." class members, the suit sought general The employees in these cases and special damages totaling $350 mil- claimed Scotiabank and CIBC used the lion, as well as declaratory and injunc- "pre-approval requirement in their tive relief. The Ontario Court of Appeal overtime polices to avoid their obligaagreed to certify the class action. tion under the code to pay for overtime In Fresco, the action was started by work that was 'required or permitted' a CIBC employee "on behalf of some by the employer." In addition, they fur31,000 customer service employees" of ther stated "Scotiabank and CIBC CIBC, alleging that "CIBC breached its failed to implement proper recordcontractual and statutory duties to pay keeping systems for recording the class members for overtime work that | BY RONALD MINKEN | Continued on page 6 In T h is I s s u e ASK AN EXPERT: Failure to report misconduct of another • Cumulative mistakes CASES AND TRENDS: Finding the right words in employment contracts 2 3 CASE IN POINT: Flight advisors fired, reinstated after abandoning posts 4 YOU MAKE THE CALL: Auto shop provides quick fix for absenteeism 8 Language barrier casts doubt on worker's resignation AN ONTARIO company didn't properly confirm if an employee who couldn't speak English resigned, an arbitrator has ruled. Irondina Nunes, 62, was hired by Quality Meat Packers in Toronto to cut and pack back ribs, in October 1999. Nunes didn't understand English and only spoke Portuguese, so her hiring and orientation was handled by the HR supervisor, who spoke Portuguese and verbally translated all necessary forms. Nunes was considered a good employee and her employment continued without event until 2010, when she began suffering pain and swelling in her feet. She discussed it with her foreman, but she didn't have to take any time off until June 11, 2011, when she asked to leave work two hours early. Nunes continued to have problems with her feet over the next week, but worked through them until June 17, Continued on page 7

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