Canadian Employment Law Today

CELT May 29 2013:celt 467.qxd 13-05-15 4:34 PM Page 7 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 were offered to employees based on their pay scale groups. Each employee was asked to select five new positions and a committee would rank the top employees and offer them positions based on the ranking. Meyers wanted to apply for the position of manager, IT Canada, but he wasn't allowed to because it was above his pay scale. Another employee who was on the same level in the organizational chart got the job, but that employee was on the next pay scale. On July 23, 2010, Meyers was offered a business analyst position, which had the same salary, benefits and bonuses. There were no supervisory duties and the job reported to the same manager as positions that formerly reported to Meyers. Meyers felt this new job was a "damaging backwards step in my career," so he refused the offer and informed Chevron he was being constructively dismissed and should be given a severance package. Chevron ASK AN EXPERT ...continued from page 2 provinces, including Saskatchewan, no emergency leave provisions are found within the governing employment legislation. In Ontario, however, the Employment Standards Act, 2000 contains emergency leave provisions that apply to employers of 50 or more employees. These provisions entitle employees to a job-protected leave of up to 10 days without pay every calendar year, should they require time away from work due to an emergency situation. Recognized emergencies include illness, injury, medical emergency, or an urgent matter for the employee or a family member as defined under the act. An employee is required to advise disagreed and said it would treat his leaving as a resignation. Meyers filed a suit for constructive dismissal. The court noted Meyers had several job changes during his time with Chevron, some of them lateral moves. At the time of the restructuring, he had three employees reporting to him and never more than five plus a few contractors while he was the applications development team lead. The reduction in direct reports showed Meyers' supervisory role was diminishing, said the court. It was also evident the new business analyst position had significant responsibilities in budgetary and project management matters. It was not what Meyers simply characterized as "his former position without supervisory responsibility," said the court. It was in fact a "senior position in the IT department." The court also noted Meyers' compensation didn't change. The only major change was that he would have a cubicle instead of his own office. Though Meyers claimed he felt "embarrassed and humiliated" because of this change and the fact employees who formerly reported to him would be equals on the chart, this was not a fundamental change to his duties or a breach of the employment contract, said the court. "I find that Mr. Meyers was hasty in resigning from his position without determining whether his concerns regarding the job would be borne out," said the court. "In my opinion, Mr. Meyers resigned by failing to accept the new position that was offered to him." The court dismissed the suit and found Meyers wasn't entitled to any reasonable notice or damages in lieu thereof. See Meyers v. Chevron Canada Ltd., 2013 CarswellBC 665 (B.C. S.C.). her employer of a leave of absence. Adjudicators have accepted and recognized an employee has a duty to provide appropriate notice and information to the employer, such as the nature of the absence or the reasons for absence and the expected length of the absence. If an employee has to begin a personal emergency leave before notifying the employer, the employee must inform the employer as soon as possible. The failure to give notice, however, does not erase the employee's right to emergency leave. An employer would be able to impose discipline if an employee fails to provide any notice of the emergency leave (either before or after the leave) or fails to return to work after the expiration of the 10 days provided by the act, if the employer's disciplinary action is appropriate — and in no way a penalty or reprisal for the employee having taken the leave, but only for the failure to give notice or return to work. In determining whether a failure to return to work at the conclusion of an approved emergency leave constitutes just cause for dismissal, adjudicators may consider — on a case-by-case basis — factors such as the employee's position and length of service, the resulting harm suffered by the employer, whether the employee had a reasonable excuse, and whether the employee was warned that her job was at risk. CELT MORE CASES To view more Cases from Canadian Employment Law Today's archives, go to www.employmentlawtoday .com and click on "Advanced Search," where you can search for articles by keywords or department. CELT For more information see: ■ Pinard v. Unity Insurance Brokers (Windsor) Ltd., 2005 CarswellOnt 701 (Ont. S.C.J.). Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or kenny@mlt.com. Published by Canadian HR Reporter, a Thomson Reuters business 2013 7

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