Canadian Employment Law Today

CELT Sept 18 2013:celt 467.qxd 13-09-13 10:58 AM Page 7 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 angered at this response but said nothing at the time. While waiting for the meat production line in the plant to get going after a mechanical delay, Fletcher told a coworker that when the line started up, he would refuse to work until the company gave everyone two minutes of silence. The co-worker and other employees tried to discourage him, including one who was a former member of the joint health and safety committee who told Fletcher he could only refuse work if he felt it was unsafe. Most employees told him he should hold his moment of silence before the line resumed. A supervisor was told of Fletcher's intentions, and when the line started moving and Fletcher let some pieces of meat go by, the supervisor asked him what was going on. Fletcher replied that he wasn't going to work that day. Brought to the supervisor's office, and ASK AN EXPERT ...continued from page 2 In determining whether an employee is to be given working notice or pay in lieu of notice, the employer may want to consider the potential implications of this decision. In additional to a review of the practicalities associated with requiring an employee to stay in the workplace after providing notice of termination, one significant issue surrounds the provision of benefits during paid notice periods. Where pay in lieu of notice is given and the former employee's benefits are cut off, the employer may be liable if the employee is injured during the notice period. For example, in Prince v. T. Eaton Co., a 1992 British Columbia case, an employee was dismissed from his position and received eight weeks' termination notice and 34 weeks of severance pay. After his termination, but before the end of the reasonable notice with a union steward on hand, Fletcher repeated his intention and was sent home. The following week, his employment was terminated. Fletcher contacted the press and was quoted in a newspaper article describing his actions as an "on-duty vigil" and a "mini-protest." He said he knew he would get in trouble but didn't expect to be fired. He also appeared on a local news show criticizing Cargill. Fletcher testified that he regretted his actions and would have done things differently given a chance to do them over. However, the arbitrator noted that his intention by contacting the press was to "cast the company in a negative light." The arbitrator found Cargill's operations at the plant involved a production line that could not simply be shut down for a moment of silence. Any product on the line would have to work its way through to the end with no more product added, and shutting it down for one minute would cost Cargill $1,000. The arbitrator also reiterated what the manager told Fletcher: Cargill honoured victims and the fallen on Remem- brance Day with a moment of silence. It was also noted the company participated in humanitarian initiatives, including fundraising for victims of the 2011 tsunami in Japan and the 2010 earthquake in Haiti. The arbitrator found Fletcher "willfully and intentionally planned and engaged in a work refusal designed to force the company to hold a moment of silence." However, Fletcher had three years of service with a clean record and he expressed remorse at the hearing when he realized his actions were wrong. As a result, the arbitrator determined Cargill did not have just cause to terminate Fletcher's employment. However, though reinstatement with a two-month suspension would have been the proper remedy, the arbitrator found irreparable harm had been done to the employment relationship. Instead, Cargill was ordered to pay Fletcher $6,000 to compensate him for loss of opportunity to be reinstated. See Cargill Ltd. and UFCW-Can, Local 175 (Fletcher), Re, 2013 CarswellOnt 8449 (Ont. Arb. Bd.). period determined by the court, the terminated employee was severely disabled. Eaton's refused to recognize the employee's claim for benefits as the disability arose after he stopped being an active employee. The court found a dismissed employee, whose employment was wrongfully terminated is entitled to compensation for loss suffered as a result of the deprivation of benefits during the notice period. In Prince, the policies and contracts at issue stipulated that coverage would extend during the full notice period, regardless of whether the employee remained actively employed. Later cases have confirmed the basic principle outlined in Prince, but the courts have determined a finding of liability for loss suffered as result of the deprivation of benefits will be based on the specific contractual provisions. In other words, the case law does not actually establish a free-standing principle that employers must continue all benefits throughout the notice period. Before termination, employers will want to review their relevant insurance policies for this reason. Depending on the language, to avoid potential liability during a paid notice period, the employer may also want to take one of several actions. It may keep paying for the benefits of the employee during the notice period or, alternatively, the employer may include a full and final release of liability in the termination package. However, the employer cannot contract out of the provision of benefits during the minimum period of notice under the relevant employment standards legislation. CELT CELT For more information see: ■R. v. Lonkar Well Testing Ltd., 2009 CarswellAlta 823 (Alta. Q.B.). ■Prince v. T. Eaton Co., 1992 CarswellBC 138 (B.C. C.A.). 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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