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 7 CANADIAN EMPLOYMENT LAW TODAY MORE CASES COMPILED BY JEFFREY R. SMITH ...continued from page 1 to get to her appointment. Bernaldez told a colleague she was leaving for a dental appointment, but she did not secure permission from or inform her direct supervisor, who was away that day. Though Bernaldez had some incidental conversation with the stand-in supervisor for the day, she failed to bring up her dental appointment. The employer interviewed Bernaldez the next day. She did not deny leaving early and said she had simply forgotten to get permission. After that, Bernaldez went on vacation from April 9 to May 15 and took two days of pre-approved leave until May 18. On May 22, 2012, Bernaldez was fired, and the union filed a grievance. Her employer, Revera Retirement, argued Bernaldez had left the premises during working hours without permission. That meant she had run afoul of the deemed termination provisions in the collective agreement. In view of the fact that deemed termination provisions are designed to be strictly interpreted, there was little room for the arbitrator to lessen the penalty, according to her bosses. The union described the case as ASK AN EXPERT ...continued from page 2 (iv) a director or officer of a corporation who oversees the occupational health and safety of the workers employed by the corporation. Furthermore, persons and entities other than the employer may also have responsibilities for workers' occupational health and safety. With respect to prime contractors, if a requirement of the OHS Code imposes a duty on an employer regarding the design, construction, erection or installation of equipment, and the equipment is installed by or on behalf of the prime contractor, the prime contractor must "tragic," saying Bernaldez had been working for the company for 23 years, with no significant record of discipline. However, whatever subjective interpretation one chose to put on her circumstances, objectively Bernaldez was entitled to take unpaid emergency leave under section 50 of the Employment Standards Act (ESA). And section 74 of the ESA acts to prevent employers from making reprisals against workers who exercise their rights under the ESA. Unions and employers cannot contract out the standards in the ESA. In this case, that meant that the employer could not fire Bernaldez for accessing emergency unpaid leave provisions under the ESA to go to the dentist, the union went on to say. The arbitrator agreed. Without access to the emergency leave provisions in the ESA, the employer would be within its rights to fire Bernaldez under the deemed termination provisions in the contract, said the arbitrator. And, since it was operating a retirement home, Revera Retirement had a legitimate interest in ensuring employees were present during working hours. For workers employed in workplaces that regularly employ 50 or more workers, the right to unpaid emergency leave under the ESA is clear. The ESA obliges workers to advise their employer they intend to take leave under the ESA. However, the act also says if workers are unable to notify the employer before starting their emergency leave, they are required to let the employer know as soon as possible after starting the leave. This means, the arbitrator said, that taking the leave is not contingent on employer consent. Some discipline may be awarded for failure to provide proper notice but there can be no discipline for taking a qualified, unpaid emergency leave under the ESA. As the Ontario Court of Appeal explained in London Machinery Inc. (2006): "By separating the entitlement to the leave from the notice requirement, it seems that the legislature did not intend to make the failure to provide notice grounds to disqualify the employee from taking the leave. This then leads to the conclusion, as set out in the (Employment Standards Branch) Policy Manual, that (the employee) could be disciplined for failing to give notice, but he did not lose his entitlement to the emergency leave. As he had an absolute right to the emergency leave without the need for authorization from the company, he could not have been terminated for being absent without such authorization." The arbitrator ordered Bernaldez to be compensated and reinstated without loss of seniority. See Service Employees International Union, Local 1 Canada and Revera Retirement LP (Feb. 28, 2013) James Hayes — Sole Arbitrator. comply with the requirement as if it were directly imposed on the prime contractor. Also, pursuant to section 3(1) of the OHSA, if there are two or more employers working at a worksite, there must be a "prime contractor" whose responsibility it will be to ensure the legislation is complied with respect of a work site. Suppliers are required, pursuant to section 2(3) of the OHSA, to ensure tools, appliances and equipment that are supplied are in safe operating condition. Contractors, pursuant to section 2(4) of the OHSA, who direct the activities of an employer involved in work at a worksite shall ensure the employer complies with the OHSA, the OHSR and the OHS Code in respect of that work site. Finally, employees them- selves have obligations pursuant to section 2(2) of the OHSA to take reasonable care of the health and safety of the worker and other workers present while the worker is working and to co-operate with the worker's employer for the purpose of protecting health and safety. CELT CELT For more information see: ■Lougheed Imports Ltd. V. U.F.C.W., Local 1518, 2010 CarswellBC 3021 (B.C. Lab. Rel. Bd.). ■Groves v. Cargojet Holdings Ltd., 2011 CarswellNat 3422 (Can. Arb. Bd.). Tim Mitchell is a partner with Norton Rose in Calgary. He can be reached at (403) 233-0050 or Published by Canadian HR Reporter, a Thomson Reuters business 2013 7

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