Canadian Employment Law Today

October 29, 2014

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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Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2014 more Cases Prognosis following hernia surgery was positive e employee's attendance improved somewhat and she was discharged from the AACP in March 2011. However, by Novem- ber 2012, her absences were still frequent, so the hospital asked the employee to aim for perfect attendance for six months. If she couldn't accomplish that, her employment could be terminated. e employee couldn't make this target and called in sick on Jan. 14, 2013, due to ab- dominal pain. Five weeks later, the hospital gave her "one final opportunity to improve your attendance," setting a target of two sick incidents and six days of absence over the next six months followed by the same lim- its for the 12 months after that — with all absences requiring a doctor's note. How- ever, over that period the employee called in sick three times for four days — twice with abdominal pain and once with back pain. ough the total sick day limit wasn't breached, the number of sick incidents was. On Aug. 21, 2013, the employee was dis- missed for excessive absenteeism. e union grieved the dismissal, arguing the hospital didn't accommodate the em- ployee's disability and the absences related to her abdominal pain shouldn't be counted towards the prospects of future absences be- cause it wasn't expected to occur following surgery. e arbitrator found that the employer might have met the first "challenge given to her, except for her abdominal hernias. e surgery she underwent was expected to resolve that problem. In addition, she pro- vided doctor's notes that indicated she was going to have surgery, so the hospital could have asked for a prognosis before deciding whether the employee was capable of com- ing to work regularly once the surgery was performed, said the arbitrator. "e employer's determination, that the (employee) was incapable of regular atten- dance in the future, was premature and based on insufficient inquiry," said the arbitrator. e arbitrator also found the employee had a treatment plan for her back and knee problems, that could potentially improve her attendance. However, if she continued to choose not to follow the plan, she could be putting her continued employment at risk. e hospital was ordered to reinstate the employee to her position subject to the condi- tions of her second challenge — a limit of four sick incidents and 12 total days of absence in the next 12 months. e arbitrator also in- dicated the employee must provide medical evidence to the hospital to support her claim of a disability before the hospital was required to implement its disability management pro- gram. See Humber River Hospital and TC, Local 419 (Antoine), Re, 2014 CarswellOnt 11373 (Ont. Arb.). « from diSmiSSAl on page 1 tween the parties. ese factors all pointed to the conclusion that the contractor was well aware of the termination provisions in his contract and of their import and could not claim notice of termination despite the lengthy relationship between the parties. In Pennock v. United Farmers of Alberta Co-Operative Limited, a majority of the Al- berta Court of Appeal held that a contractor who had worked for the employer as a bulk fuel agent for 12 years under a series of con- tracts had no claim for reasonable notice. e majority regarded the agency contract as unambiguous: it remained in effect for three years unless terminated sooner and termina- tion could be brought about by either party on 30 days' notice. Neither the prospect of renewal nor the contractor's expectation of routine renewal amounted to a promise that the contract would be renewed. In the major- ity's view, nothing in the contract or the facts justified an interpretation of the contract that departed from its express terms. e dissenting justice disagreed, finding oral representations of the employer's rep- resentative amounted to assurances the con- tract would be renewed as it had been nine times previously and conveyed to the contrac- tor a sense of entitlement consistent with the parties' long-term relationship. In his view, this right of the contractor and correspond- ing obligation of the employer remained un- affected by termination of the agreement. In Rossmo v. Vancouver (City) Police Board, the B.C. Court of Appeal held that an em- ployer's offer to the contractor of a lower- rated position upon the expiry of a five-year contract of employment was not a demotion as the employer had no obligation to offer the contractor any position. In that case, the con- tract contained a renewal clause, but it was consistent with the contract being one for a fixed term: "the agreement may be renewed by mutual agreement if such agreement is reached prior to December 31, 1999. If such agreement is not reached the employment… shall terminate on December 31, 2000, with- out any further notice." As all of these examples illustrate, it is certainly arguable that an offer to renew a fixed-term contract only for a shorter term could amount to a breach of contract and a constructive dismissal of the employee. e result would be dictated by all of the circum- stances of the case. Where both parties are clearly aware of the fixed-term nature of the successive contracts; where the contracts themselves clearly provide that each is limited to the specified term with no language capable of justifying an alternative interpretation; where the parties have consistently acted in a manner consistent with contracts being for fixed terms and expiring upon conclu- sion of the terms; and where there has been no conduct or representation made to ef- fect a renewal or to justify a reasonable ex- pectation of renewal, it is likely an offer of a shorter term would not give rise to a cause of action for breach of contract. It should also be noted that obligations re- lated to fixed-term contracts may be created by statute in some provinces. For example, employers in Ontario should be aware of the possible application of that province's Termination and Severance of Employment Regulation. Section 2(2) of the Regulation states that an exemption from the obligation to pay termination pay to employment for a definite term or task does not apply if the term expires or the task is not yet completed more than 12 months after the employment commences or if employment continues for three months or more after the expiry of the term or the completion of the task. For more information see: • Ceccol v. Ontario Gymnastic Federation, 2001 CarswellOnt 3026 (Ont. C.A.). • Monjushko v. Century College Ltd., 2008 CarswellBC 118 (B.C. S.C.). • Quebec (Commission des normes du tra- vail c. IEC Holden inc.), 2014 CarswellQue 8398 (Que. C.A.). • Morgan c. Atwater Badminton and Squash Club Inc., 2014 CarswellQue 4531 (Que. C.A.). • Flynn v. Shorcan Brokers Ltd., 2004 Car- swellOnt 2874 (Ont. S.C.J.). • Jacks v. Victoria Amateur Swimming Club, 2005 CarswellBC 1286 (B.C. S.C.). • Pennock v. United Farmers of Alberta Co- Operative Limited, 2008 CarswellAlta 1030 (Alta. C.A.). • Rossmo v. Vancouver (City) Police Board, 2003 CarswellBC 3012 (B.C. C.A.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary office. He can be reached at (403) 267-8225 or tim.mitchell@norton- Renewing contracts for shorter terms « from ASk AN exPert on page 2

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