Canadian Employment Law Today

6 | July 23, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Cases and Trends/Ask an expert working in Vancouver. Because he was em- ployed in British Columbia at the time of his termination, it was the B.C. Employment Standards Act that governed. e court held that it was enough to nul- lify the termination clause that there was a possibility it could fail to meet the require- ments of the B.C. act. It found that possibil- ity in the method of calculating pay in lieu of notice in the two statutes. Although the number of weeks of notice was the same in both provinces, the B.C. legislation used a different formula for calculating compensa- tion. e difference could have been signifi- cant if the compensation of the employee included commissions in addition to regu- lar salary, as it did for the employee who was a sales manager. Accordingly, the employee was entitled to seek reasonable notice. In Kosowan v. Concept Electric Ltd., a contract provision set out the employee's entitlement on termination without cause as follows: "you will be entitled to advance notice or severance pay thereof in accord- ance with the Employment Standards Act of Alberta." e employee was terminated and given four weeks pay in lieu of notice as provided for in the legislation. e Alberta Court of Appeal held that he was entitled to claim reasonable notice if wrongfully dis- missed as the language of the employment contract did not confine the employee's en- titlement to statutory minimum notice; it merely entitled him to it. Another common provision of employment standards legis- lation, one that preserved any civil remedy that an employee might have apart from the legislation, allowed him to claim reasonable notice in addition to the statutory notice. A sloppily-drafted policies and proced- ures reference manual was found equally in- effective to limit an employee's entitlement in Gillespie v. 1200333 Alberta Ltd. e notice provision stated that "notice of ter- mination for regular full or part-time em- ployees will for (sic) the guidelines as set out by Albert (sic) Labour - Employment Stan- dards." e court found that the reference to 'guidelines' was not specific enough to put the employee on notice that her rights were limited to the statutory minimums speci- fied in the code or to exclude the employee's common law right for reasonable notice. A contractual provision that termination notice would accord with legislated prov- incial standards was to be interpreted as an agreement regarding minimal notice, not an agreement to exclude the presumptive entitlement to reasonable notice. Although employers were free to make contracts that limited an employee's notice entitlement to the statutory minimums, any such agree- ment had to be clear and unambiguous. ese examples illustrate the importance of careful drafting in an employment con- tract and the importance of reviewing the contract periodically, particularly where some change has occurred. e provision of a specific notice entitlement is a dangerous practice based on the jurisprudence. For more information see: • Machtinger v. HOJ Industries Ltd., 1992 CarswellOnt 892 (S.C.C.). • Shore v. Ladner Downs, 1998 CarswellBC 973 (B.C. C.A.). • Slepenkova v. Ivanov, 2009 CarswellOnt 3749 (Ont. C.A.). • Roden v. e Toronto Humane Society, 2005 CarswellOnt 4479 (Ont. C.A.). • Wright v. e Young and Rubicam Group of Companies (Wunderman), 2011 Carswel- lOnt 10754 (Ont. S.C.J.). • Waddell v. Cintas Corp., 2001 CarswellBC 2798 (B.C. C.A.). • Kosowan v. Concept Electric Ltd., 2007 Car- swellAlta 310 (Alta. C.A.). • Gillespie v. 1200333 Alberta Ltd., 2012 CarswellAlta 206 (Alta. Q.B.). Tim Mitchell is a partner with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or Tim.Mitchell@norton- rosefulbright.com. Parental duties Termination « from FAMilY stAtus on page 1 « from AsK AN eXPert on page 2 those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child. As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal li- ability. us a parent cannot leave a young child without supervision at home in order to pursue his or her work, since this would constitute a form of neglect. "Voluntary family activities, such as fam- ily trips, participation in extracurricular sports events, etc. do not have this immu- table characteristic since they result from parental choices rather than parental ob- ligations. ese activities would not nor- mally trigger a claim to discrimination re- sulting in some obligation to accommodate by an employer [emphasis added]." how does an employee prove family status discrimination? e court also clarified how the concept of discrimination is to be applied in family status cases, acknowledging it is a contex- tual analysis, and laying out four elements an employee must prove for a case of family status discrimination: • A child is under the employee's care and supervision • e childcare obligation engages the em- ployee's legal responsibility for that child, as opposed to a personal choice • e employee has made reasonable efforts to meet those childcare obligations, and no alternative solution is reasonably acces- sible • e impugned workplace rule interferes in a manner that is more than trivial or insub- stantial with the fulfillment of the childcare obligation. Of particular importance for employers is the court's ruling that an employee must try to reconcile work and family obligations before a case of discrimination is made out: "Normally, parents have various options available to meet their parental obligations. erefore, it cannot be said that a childcare obligation has resulted in an employee being unable to meet his or her work obligations unless no reasonable childcare alternative is reasonably available to the employee. It is only if the employee has sought out reasonable alternative childcare ar- rangements unsuccessfully, and remains unable to fulfill his or her parental obliga- tions, that a prima facie case of discrimi- nation will be made out [emphasis added]." e court was also clear to point out that this requirement does not create a hierarchy of rights or a greater burden on complain- ants in family status cases, but rather rec- ognizes the context where such cases take place. lessons for employers It is important to take all human rights concerns seriously. When an employee raises a family status issue, treat it with the same attention as a request for medical ac- commodation. However, in determining whether there is an obligation to accom- modate, remember an employer does not have a freestanding duty to accommodate all family-related requests. Before a dis- cussion of accommodation begins, an em- ployer is entitled to ensure the claim deals with a substantial parental obligation (not a preference), and the employee has provided evidence of her individual efforts to recon- cile work and family obligations outside of the workplace. For more information see: • Johnstone v. Canada (Border Services Agency), 2014 CarswellNat 1415 (F.C.A.). • Seeley v. Canadian National Railway, 2014 CarswellNat 1421 (F.C.A.). Adam James is a law student with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. He can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sher- rardkuzz.com.

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