Canadian Employment Law Today

with Tim mitchell ask an Expert Have a question for our experts? Email Jeffrey.r.smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | march 4, 2015 Tim mitchell ask an Expert Have a question for our experts? Email Jeffrey.r.smith@thomsonreuters.com Answer: In the absence of a contractual or statutory obligation, an employer is not required to pay an employee who chooses to take a snow day when the offi ce is open and work is available to be performed. e decision to grant or withhold pay in such a situation is a decision within the employer's discretion. Many collective agreements contain provisions expressly addressing non-atten- dance due to inclement weather. e pro- visions vary widely. Some simply deny pay when an employee does not attend. Others place conditions on pay entitlement, such as proof of the "impossibility" of attending. Yet others may require or permit absent employees to use banked vacation or over- time hours as a substitute for the hours not worked or to treat the time off as unpaid leave. Often, employees may be allowed a limited number of paid personal days that can be used for snow days. Discretion may also be reserved to deal with specifi c situa- tions on their particular facts if the general rule is to deny pay. Non-attendance based on an employee's legitimate safety concerns is unlikely to be considered cause for dismissal in either common law or unionized employment, without more. e fact that the workplace remains open is not necessarily determina- tive of the legitimacy of the employee's deci- sion, as each employee's circumstances will be diff erent. Some may be able to walk to work or have access to public transit. Oth- ers may live at a considerable distance or in a remote area where travel is more diffi cult or dangerous. Discipline may certainly be considered if there is reason to believe that safety con- cerns are not the real reason for the absence. A recent example of such a disciplinary re- sponse was upheld at arbitration in Nation- al Steel Car and USW, Local 7135 (Porcic), Re. In that case, an employee's snow day was treated as a culpable absence in breach of a last chance agreement where the employer was able to show that the absence was not warranted by the weather conditions, the employee's proximity to the workplace and the other options available to him. It is good practice to have a written policy that expressly contemplates the possibility of adverse weather conditions in situations that do and do not result in closure of the work- place. is will ensure employees are aware in advance of the employer's expectations vis-à-vis attendance and pay in such circum- stances and may determine their course of action in the face of that knowledge. For more information see: • National Steel Car and USW, Local 7135 (Porcic), Re, 2014 CarswellOnt 4670 (Ont. Arb.). Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright's Calgary offi ce. He can be reached at (403) 267-8225 or tim.mitchell@norton- rosefulbright.com. The fact that the workplace remains open is not necessarily determinative of the legitimacy of the employee's decision to not come to the offi ce, as each employee's circumstances will be different. WeBinars Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as attendance management, employment standards, the new Labour Market Impact Assessment, and key developments in employment law. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. Safety concerns over bad weather commuting Question: How should an employer handle an employee who refuses for safety reasons to commute to work whenever the weather is bad, even if the employer does not consider it bad enough to close the office? norton rose FulBright CALGARY credit: Brian snYder/reuters a winter storm in Boston Feb. 15, 2015.

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