Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. gSt #897176350 Published biweekly 22 times a year Subscription rate: $299 per year cUsToMer service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson reuters canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey R. Smith E-mail: Jeffrey.r.smith@thomsonreuters.com ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com how would you handle this case? read the facts and see if the judge agrees YOU MAKE thE cALL 8 Worker not fond of employer's direct approach ThiS iNSTALMeNT of You Make the Call features an employee who resisted his em- ployer's attempts to move to a direct deposit system for paying its employees. Richard Rudinsky was a crane operator for Howe Sound Pulp and Paper Corpora- tion, a pulp and paper company based in Port Mellon, B.C. For the fi rst 23 years of his employment with the company, Ru- dinsky was paid by physical paycheque. In 2011, the company's HR department asked him if he would like to be paid by direct de- posit and it off ered to pay any expenses he incurred in opening and operating a bank account for that purpose for the fi rst two years. Rudinsky declined the off er and said he preferred to continue receiving a pa- per cheque. A little while later, he began receiving notes with his paycheque ask- ing him to move to direct deposit since processing a paper cheque was costly and time consuming. When Rudinsky didn't respond to the notes, the company payroll offi cer suggested to him in person to switch to direct deposit. Rudinsky again declined as he wasn't comfortable shar- ing personal information such as his bank account information with his em- ployer. On May 27, 2014, the payroll supervisor summoned Rudinsky to her offi ce and told him she needed his banking information to set up direct deposit. Rudinksy didn't do so and simply said to have a nice day. He was asked again later and Rudinsky said the B.C. Employment Standards Act (ESA) required employee authorization for direct deposit, which he wouldn't provide. He also said without a provision in the collective agree- ment making direct deposit a condition of employment, he didn't have to comply. A few days later, Rudinsky was brought to an "informational meeting" with the company's HR assistant and his supervisor. He was then taken to the offi ce of the man- ager of HR, who directed him to provide his banking information by the next morning or face "discipline or termination." Rudinsky felt the HR manager was "forceful, aggressive and threatening" and reiterated the requirement for employee authorization in the ESA. e HR manager gave him a letter that was a "clear and direct instruction to bring a VOID cheque to the payroll supervisor tomorrow morning for the purpose of arranging direct deposit of your pay." e letter indicated a failure to follow this directive would result in disci- pline and possibly dismissal. Rudinsky was upset and felt bullied. Rudinsky went back to work and the next day, he opened a bank account and provided his information for direct deposit. He then fi led a grievance, claiming the ESA specifi ed employees must be paid "by cheque, draft or money order" and only direct deposit "if authorized by the employee in writing or by a collective agreement." He also argued the collective agreement was silent on the issue of direct deposit and therefore Howe Sound Pulp and Paper had no authority to force him into it. e company argued the collective agreement covered "how wages are paid" and included "payroll" within its jurisdic- tion. ough there was no specifi c lan- guage on particular methods of payment, it should be enough to include payroll decisions within management rights, it said. yoU Make The caLL Should the company be permitted to enforce direct deposit as the way to pay the employee? OR Did the employee have the right to refuse direct deposit as his method of receiving pay? iF yOU SAiD the employee had the right to refuse direct deposit, you're right. e ar- bitratror agreed that the company's push to get Rudinsky to accept direct deposit was for bona fi de business objectives of saving costs and its aggressive persuasion eff orts were within its management rights. However, the arbitrator found there was no provision in the collective agreement dealing with method of payment such as direct deposit and, without such a provi- sion, the ESA's specifi cation that direct de- posit required written authorization from the employee took precedence. When the company ordered Rudinsky to commence direct deposit, it breached the ESA and the collective agreement, said the arbitrator. Because Rudinsky's banking information was personal information, the company's un- reasonable requirement to disclose it was also a violation of Rudinsky's privacy rights, said the arbitrator. However, the arbitrator also found the harm Rudinsky suff ered was "large- ly symbolic" and didn't really cause any prob- lems for him. If anything, Rudinsky benefi tted from the company's use of the information. "Rather than infl icting a potential abuse of privacy or disclosing intimate details of (Rudinsky's) personal life, the company was making a payment to the credit of (Rudin- sky)," said the arbitrator. "Admittedly, the company gains effi ciencies by using direct deposit. However, the main practical result of the privacy breach was that (Rudinsky) re- ceived his pay." e arbitrator determined Howe Sound Pulp and Paper should not have forced Ru- dinsky to submit to direct deposit of his pay- cheque. However, since the harm was very limited, the arbitrator awarded Rudinsky a nominal amount of $200 in damages and ordered the company to resume paying him by cheque "until such time as he provides his written authorization to direct deposit or the collective agreement authorizes pay- ment in that manner." See Howe Sound Pulp & Paper Corp. and Unifor, Local 1119, Re, 2014 CarswellBC 3103 (B.C. Arb.).

• Cover