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 | April 29, 2015 with Brian Johnston Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Answer: It is almost always best to wait for the employee's return to work before implementing discipline or discharging the employee. Employees on medical leave are usually more vulnerable physically or men- tally, and therefore a dismissal at that time may cause harm by and of itself to the em- ployee and therefore may attract aggravated or moral damages. Keays damages are avail- able when the manner of dismissal causes mental distress that was in the contempla- tion of the parties. To be compensable, the hurt feelings caused by the employer's bad- faith conduct must exceed what would flow from the loss of employment. e employee in Mulvihill v. Ottawa (City), was awarded damages for bad-faith dismissal, in part because, according to the trial judge, her employer made a "mistake" by dismissing her during her sick leave. e Ontario Court of Appeal reversed this deci- sion, on the basis that a "mistake" is not evi- dence of bad faith. e employer was found to have terminated the employee based on an honest, reasonable belief that the em- ployee's conduct constituted insubordina- tion amounting to just cause for dismissal. e termination during sick leave, by itself, was not evidence of bad faith or malice. Even when Keays damages are not an is- sue, the dismissal of an employee during sick leave can impact the reasonable notice pe- riod. In Deyonge v. Liberty Mutual Insurance Co., the Ontario Superior Court of Justice delayed commencement of the reasonable notice period until after payment of disabil- ity benefits, which were required to be paid post-termination. e underlying rationale for the suspension of the notice period is that the employee should be given an opportu- nity to find employment, and in some situ- ations this opportunity is compromised by the sickness. However, if the employee was afforded a fair and reasonable opportunity to prepare for termination during a period of disability, there would be no reason to delay the period of reasonable notice. In some cases it may be appropriate to suspend an employee on medical leave (the employee is suspended "pending investiga- tion"). However, all such suspensions must be reasonable and justified. Recently, in Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court of Canada found that an indefinite suspension, which began when the employee was on sick leave, was a constructive dismissal of the employ- ee. However, the fact that it commenced during medical leave was not a major factor. Instead, the court's reasoning focused on the fact that the suspension was unilateral, indefinite and without reasons, and there- fore not reasonable or justified. For the most part there is seldom a jus- tification to dismiss an employee while that employee is on medical leave. Some- times employers will feel compelled to do so nonetheless so as to disassociate it with the employee and be able to announce that the employee was dismissed. at desire is a justification only in the rarest of cases, and risky. Pay for remote worker to come to office Question: If an employee who normally works remotely has to come to the office for a meeting, does the travel time to the office count as work time when it comes to compensation? Answer: ere seems to be a consensus that the answer is "yes." ough not directly ad- dressed in labour standards legislation, this consensus is based on an interpretation of employment standards "deemed work" provisions. In other words, having to come to the office for a meeting when one nor- mally works remotely is the type of activity that would be deemed "work" by most em- ployment standards regimes and, therefore, compensable. Travel time, which is any time spent trav- elling once an employee reports for work, is of course distinguished from "commute" time, which is an employee's own time spent getting to work. ere is no statutory re- quirement in Canada to compensate em- ployees for time spent commuting to and from work. Ontario, for example, is one province where travel time clearly counts as work time under employment standards legisla- tion. e Ontario Ministry of Labour web- site (http://www.labour.gov.on.ca/english/ es/tools/hours/what_counts.php) provides: "If the employee has a usual workplace but is required to travel to another location to perform work, the time travelling to and from that other location is counted as work time." e above quote is an interpretation of s. 6(1)(a)(i) of Ontario Regulation 285/01, which says that "work shall be deemed to be performed by an employee for the employ- er where work is permitted or suffered to be done by the employer." e general prin- ciple embodied in this regulation is that employees are "at work" when their em- ployer exercises control and direction over them. is is the same principle under which an employee who is required to trav- el between job sites, or from the employer's base to the worksite, is compensated for travel time, as is the case in British Colum- bia and Alberta. e answer to the above question in other jurisdictions is less certain. In Nova Scotia, for example, there is no specific indication as to whether travel time counts as on the clock. In the Northwest Territories, the La- bour Standards Board refused to consider an employee's claim for travel time (North- ern Lights Drywall Ltd. v. Gabrielson). e board reasoned that "the Labour Standards Act does not address travel time and living allowances." As law and interpretations differ among provinces, employers should consult coun- sel or the authorities in their jurisdiction, paying attention to the specific circum- stances of employment and how employ- ment standards legislation applies to those circumstances. For more information see: • Mulvihill v. Ottawa (City), 2008 Carswel- lOnt 1511 (Ont. C.A.). • Deyonge v. Liberty Mutual Insurance Co., 2003 CarswellOnt 350 (Ont. S.C.J.) • Potter v. New Brunswick (Legal Aid Ser- vices Commission), 2015 CarswellNB 87 (S.C.C.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck- elvey.com. The general principle embodied in the Ontario regulation is that employees are 'at work' when their employer exercises direct control over them. Dismissal of employee on medical leave Question: If an employee goes on medical leave while being investigated for misconduct, is it appropriate to implement discipline or dismissal once the investigation is complete or wait until the employee returns to work? Can an employee be dismissed while on medical leave if there is just cause?

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