Canadian Employment Law Today

Stuart McKelvey Halifax Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | February 4, 2015 with Brian Johnston Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 Answer: e questions can be addressed in two parts: Can management oblige employ- ees to take vacation, and what redress does management have if an employee resists taking vacation? Employment standards legislation ad- dresses the first part. While legislation var- ies slightly from jurisdiction to jurisdiction, the general law on vacation is consistent. Typically, legislation confirms the employ- er's right to decide when an employee will take vacation. Legislation typically specifies a "deadline" by which the vacation should be taken. For example, the Ontario Employ- ment Standards Act, 2000, reads: "e employer shall determine when an employee shall take his or her vacation for a vacation entitlement year, subject to the fol- lowing rules: 1. e vacation shall be completed no later than 10 months after the end of the vaca- tion entitlement year for which it is given. 2. e vacation shall be a two-week period or two periods of one week each, unless the employee requests in writing that the va- cation be taken in shorter periods and the employer agrees to that request." It is within the purview of employers to schedule or "force" vacation. Some jurisdic- tions require that employees be provided with advance notice of a "forced" vaca- tion. Nova Scotia legislation, for example, requires employers to provide one week's notice. Further, employers who force va- cation should do so prior to the applicable "deadline" from the end of the vacation en- titlement year set by employment standards legislation. For example, the Nova Scotia legislation echoes Ontario with a 10-month deadline, whereas Alberta and British Co- lumbia provide for a 12-month deadline. In any instance, it is important for employers to review and act in accordance with the ap- plicable legislation, and equally important to ensure their actions are not only in accor- dance with the law, but their own policies and practices as well. Additionally, employers often ask about a "use it or lose it" policy. Typically, "use it or lose it" policies may only apply to vaca- tion time and pay that is in excess of the minimum entitlements under employment standards legislation. For example, if an em- ployee is entitled to two weeks' vacation un- der their province's legislation and their em- ployment contract grants them three weeks of vacation, the employer may invoke the "use it or lose it" policy with respect to the extra one week of an employee's vacation and vacation pay entitlement or to unused vacation after the statutory period to use ac- crued vacation has passed (the 10-month or 12-month deadline referenced above). Note there is varying case law with respect to use it or lose it policies in some provinces (such as the 2004 Ontario case Geluch v. Rosedale Golf Assn.). Generally, "use it or lose it" poli- cies can be a good idea, because there have been cases where the dismissed employee presents a big "vacation bill" on the way out the door. e second part of the question can be answered more directly. Absent any contractual provisions to the contrary, it is within the scope of management to con- trol scheduling and to determine vacation periods. It follows that an employee who shows up for work outside designated schedule is disregarding that authority and therefore may be sent home and subject to discipline. Injury during notice period Question: If an employee gives notice of resignation and then suffers an injury before the resignation date, does the employer have to continue benefits? Answer: "Giving (two weeks') notice" is common terminology used when an employee wishes to give notice of her intention to resign. Naturally this means the employee is providing the employer with a period of advance notice for her impend- ing resignation. Upon receiving notice, an employer has two options: allow the em- ployee to continue working until the expi- ration of the notice period — "working no- tice" — or effectively end the employment relationship immediately by providing pay in lieu of the notice period. In cases of working notice" an employee's resignation does not become effective un- til the expiration of the notice period. An employee remains employed and main- tains full entitlement to the terms of her employment during the notice period. Any change of those terms, including failure to continue benefits, may be considered a breach of the terms of employment and ex- pose the employer to liability from such a breach. A broad examination of the obliga- tions during notice periods can be found in the Supreme Court of Canada's decision in Quebec (Commission des norms du travail) v. Asphalte Desjardins inc., a case where an employee provided his employer with three weeks' notice only to have his employer dismiss him a few days into the notice pe- riod. It was observed that both parties must continue to perform their obligations un- der contract until the notice period expires: "It is well established that a contract is not automatically resiliated upon receipt of a notice of termination and that, on the con- trary, the contractual relationship continues to exist until the date specified in the notice given by the employee to the employer," said the Supreme Court. While the case addressed Quebec law, it is consistent with decisions on the issue in other Canadian jurisdictions (see the On- tario case Oxman v Dustbane Enterprises Ltd.). Further, there is legal authority saying employers are obligated to continue ben- efits for employees injured prior to a pre- determined end date to their employment (see Egan v. Alcatel Canada Inc., Stelco Inc., Re, and Foothills School Division No. 38 v. A.T.A.). It is important to note that, with typical disability policies, an employee's en- titlement to benefits crystallizes on the date of her injury, so an employee injured during a "working notice" period will likely be en- titled to those benefits. For more information see: • Geluch v. Rosedale Golf Assn., 2004 Car- swellOnt 2621 (Ont. S.C.J.). • Quebec (Commission des norms du tra- vail) v Asphalte Desjardins inc., 2014 Car- swellQue 7142 (S.C.C.). • Oxman v Dustbane Enterprises Ltd., 1988 CarswellOnt 903 (Ont. C.A.). • Egan v. Alcatel Canada Inc. 2006 Carswel- lOnt 28 (Ont. C.A.). • Stelco Inc., Re, 2005 CarswellOnt 5177 (Ont. S.C.J. [Commercial List]). • Foothills School Division No. 38 v. A.T.A., 2005 CarswellAlta 2065 (Alta. Arb.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck- elvey.com. Forcing employees to use vacation days Question: Can we force employees to use their allotted vacation days if there's a deadline to use them? Can an employer tell an employee not to show up to work even if the employee resists taking the vacation days?

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