Canadian Employment Law Today

October 16, 2013

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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CELT Oct 16 2013.qxp:celt 467.qxd 13-10-04 8:58 AM Page 1 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS Good news on layoffs for Ontario employers Temporary layoff provisions not necessary in contracts, but employment standards must be met utive weeks. If the layoff is more than 13 weeks in any period of 20 consecutive A RECENT Ontario Superior Court of Jus- weeks, but less than 35 weeks in any tice decision brings much needed clarity period of 52 consecutive weeks, the layto employers seeking to utilize the tem- off will still be considered temporary if porary layoff provisions under section 56 one of the following apply: of Ontario's Employment • The employee continues Standards Act, 2000 (ESA). to receive substantial payEMPLOYMENT Historically, this statuments from the employer. STANDARDS tory right was of limited (The meaning of "subuse because courts had stantial" in this section held that a temporary layoff under the has not been interpreted by the courts. ESA cannot be implemented unless an The ESA Policy and Interpretation Manemployment agreement between the ual states only that the payments must employer and employee contemplates be "significant or substantial".) the right to layoff. Without this express • The employer continues to make payprovision, a layoff would be a construc- ments for the benefit of the employee tive dismissal. under a legitimate retirement or pension Trites v. Renin Corp. signals a wel- plan or a legitimate group or employee come change for employers. It allows insurance plan. greater flexibility for an employer to lay • The employee receives supplementary off an employee to help manage its work- unemployment benefits. force and respond to temporary finan- • The employee is employed elsewhere cial changes. during the layoff and would be entitled Sandra Trites was employed by to receive supplementary unemployRenin Corp. as a financial controller. In ment benefits if that were not so. addition to regular wages, she was enti- • The employer recalls the employee tled to participate in Renin's group med- within the time approved by the Director ical, dental and long-term disability of Employment Standards. benefit plans. She did not have a written • In the case of an employee who is not employment contract with Renin. represented by a trade union, the As a result of financial difficulties, employer recalls the employee within Renin instituted a number of cost cutting the time set out in an agreement measures including temporarily laying between the employer and the employee. off employees under the ESA. If none of these conditions are met, the ESA provides that the layoff autoTemporary layoff provisions matically results in a termination of the Section 56(1) of the ESA allows an employment relationship. employer to temporarily lay off an With this in mind, Renin instituted employee if the layoff is for not more Continued on page 6 than 13 weeks in any period of 20 consec- PM40065782 | BY LISA BOLTON AND CAROL CHAN | OCTOBER 16, 2013 In T h is I s s u e ASK AN EXPERT: Employee social media activities • Different employers at worksite CASES AND TRENDS: Fired employee's termination provision revised without consent 2 3 CASE IN POINT: On guard against sexual harassment 4 YOU MAKE THE CALL: Sleepy flight attendant gets wings clipped 8 Employee gets kick in the teeth for emergency dental appointment AN EMPLOYEE was fired after she left work without notice for an emergency dental appointment — but an arbitrator has reversed that decision, saying she was well within her rights. Erlinda Bernaldez was a full-time housekeeper employed at Glynwood Retirement Residence in Thornhill, Ont. She had more than 20 years' service when she was fired on May 22, 2012, as well as a three-day suspension on Bernaldez's record that pre-dated union certification. On April 3, 2012, Bernaldez broke a crown off a tooth while at work. According to the arbitrator's decision, Bernaldez's dentist was gone for the day by the end of her shift, so she booked the earliest emergency dental appointment she could get, which was at 3 p.m. the next day. Despite the fact she was scheduled to work the 8 a.m. to 4 p.m. shift, she left work shortly after 2 p.m. in order Continued on page 7

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