Canadian Employment Law Today

November 26, 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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with Brian Kenny Ask an Expert Have a question for our experts? Email 2 | October 1, 2014 Canadian HR Reporter, a Thomson Reuters business 2014 Have a question for our experts? Email 2 | November 26, 2014 Answer: When an employee provides no- tification to her employer of an intention to retire from employment as of a certain date, it is in legal terms the same as a notification of resignation of employment. In law, the basic test for determining whether an employee has resigned is an objective one and, to quote a leading judg- ment on the subject, the question is: given all the surrounding circumstances, would a reasonable person have understood by the employee's statement that she had just re- signed? An employee may revoke an offer of re- tirement before it is accepted, particularly so if the offer is made in the heat of the mo- ment. e cases also establish that an em- ployee may change her mind and attempt to rescind a retirement notice and the law will permit such a change of mind to occur, pro- vided that the employer has not relied upon the notice of retirement to its detriment (such as hiring a replacement employee). e issue of whether an employer can compel an employee to retire once notice of retirement has been provided was directly considered in Manitoba Government (Re). In this decision, the employee, a 64-year-old correctional services officer, was advised that in order to receive credit for certain va- cation days on retirement he had to specify a date of when he intended to retire. In 1992, the employee advised his employer that he was "considering retirement." e employer requested an effective date. In reply, the em- ployee clearly stated, "I intend to retire in the month of March 1995." In January 1995, the employee requested approval to rescind his notice of retirement and to amend his retirement date due to financial difficulties. e employer refused, arguing that the no- tice to retire set in motion a reorganization of the company that resulted in the employ- ee's position, for all practical purposes, be- ing eliminated. In considering whether the employer could compel the employee to retire, the ar- bitrator concluded that the principles gov- erning resignation applied to a situation of early retirement. e arbitrator was satisfied the employee intended to terminate his employment re- lationship and the employer relied on this intention to its detriment. Accordingly, the employer was entitled to compel the em- ployee to retire. As such, before an employee informs the employer of the date she intends to retire, the employee should inquire as to the em- ployer's policies relating to changing her mind, or extension of the retirement date. Employees may also want to inquire as to what steps will be taken as a result of their retirement, because if the employer acts to its detriment as a result of the employee's intended retirement, the employee can be compelled to retire. For employers, it would be prudent to confirm an employee's intention to retire to ensure it was not made in the heat of the moment. It may also be beneficial for an em- ployer to inform the employee if it plans to take an action that will prevent the employ- ee from revoking or extending her notice of retirement, such as hiring a replacement employee or reorganization of its operation, and again confirm the employee's intention to retire, prior to taking any such action. Employee changing retirement date Question: If an employee indicates a retirement date and the employer plans accordingly, does the employer have any recourse if the employee changes his mind and doesn't retire as planned? MacPherson LesLie and TyerMan Regina Determining safety sensitive work for drug and alcohol testing Question: What is the threshold for determining what is a safety sensitive position for the purposes of random drug and alcohol testing? Answer: Random drug and alcohol testing is not permitted in Canada. With regard to drug and alcohol testing generally, testing is only permitted for employees occupying safety sensitive positions in the following circumstances: • Pre-employment and pre-placement • For cause (reasonable suspicion testing) • After an accident or near miss (post-inci- dent testing) • Randomly/unannounced only as part of a return to work plan. Although there is no official threshold for the determination of what constitutes a safety-sensitive position, the leading Ca- nadian case respecting what may constitute a safety sensitive position is Re Canadian National Railway Co. and Canadian Auto Workers. In that case, the arbitrator held that in determining whether an employer may resort to drugs and alcohol testing of its employees, the proper approach is to balance the privacy interests of the employ- ees with the legitimate business and safety concerns of the employer. It followed from this approach that drug testing may be rea- sonable where an employee is placed in a "safety sensitive" position. On the defini- tion of this term, the arbitrator explained "there are certain industries which by their very nature are so highly safety sensitive as to justify a high degree of caution on the part of an employer without first requiring an extensive history of documented prob- lems of substance abuse in the workplace." However, questions may nonetheless arise with respect to the safety sensitive nature of specific jobs and classifications within a company operating in such an industry. If the performance of the job by a person impaired by drugs or alcohol risks the safety of the employee, other employees or per- sons generally, or the safety of property and equipment, the work must be recognized as safety sensitive. e proper approach is to ask what con- sequences are risked if the person perform- ing a particular kind of work does so im- paired by drugs or alcohol. In other words, the employer must identify the possible risks which can reasonably arise during the performance of the assigned duties of a po- sition. ere must be a strong connection between the position's assigned duties and the possibility of a risk to safety. In answer- ing this question, it is necessary to consider: • e nature of the employee' s work includ- ing an assessment of the tasks performed • e nature of the equipment the employee operates • e nature of the material the employee handles. Examples of jobs which have been con- sidered safety sensitive include those which involve the operation of heavy machinery, equipment, or vehicles, or working in dan- gerous environments or handling danger- ous materials, such as employees of rail- ways, mines, chemical plants and sawmills. e employer is required to prove objec- tive facts concerning the duties and respon- sibilities of the position to justify the con- clusion that the position concerned is safety sensitive. It is not required that employees perform safety sensitive tasks on a full-time basis before their positions can be classified as safety sensitive. However, the frequency of the performance of safety-sensitive tasks will be a factor to consider. Privacy on page 6»

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