Canadian Employment Law Today

6 | June 24, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Cases and Trends / Ask the Expert Rothberger was considered a good employee, receiving several pay raises and being called back every spring when work became available. He had no discipline on his file. In the spring and summer of 2012, Roth- berger was involved in three incidents — two causing damage and equipment break- down and one causing a power arc leading to a power failure at a work site. In one of the incidents causing damage, the excavator's bucket came off and a piece of equipment was lost in a ditch. e incidents also result- ed in downtime from temporary shutdowns. Worker received note with paycheque On Aug. 31, 2012, Rothberger received a note with his pay slip written by Concord's bookkeeper — who was also the wife of the company principal — that stated: "As Con- cord has replaced two (2) wedges do (sic) to operator fault, the charge of any further will be made to you." Rothberger didn't acknowledge that the equipment breakdowns and loss were due to his misconduct or failure to maintain the equipment, so he tried to talk to Concord's principal about the note. He approached the principal at an event at a co-worker's home about a month later, but the principal waved him off, telling him to forget about it. e principal later testified that he hadn't in- tended to pursue payment from Rothberg- er, despite the note. However, Rothberger wasn't told the company didn't intend to ob- tain payment and he felt his concerns were being dismissed. e principal testified Rothberger ap- proached him again the following week at a safety meeting, but he told Rothberger it wasn't the time or place to discuss it. Roth- berger claimed he had no memory of having that conversation. Rothberger investigated and discovered the B.C. Employment Standards Act prohib- ited employers from demanding payment from employees without consent. As a result, he left copies of the relevant sections of the act in his employer's mailbox on Oct. 1. e principal's wife — Concord's bookkeeper — responded with an angry email outlining the incidents and stating "your lack of safety checks and lack of safety requirements are noted and filed should I need them for any future legal action you may want to pursue." Employer's response to inquiries last straw for employee After receiving the email, Rothberger de- cided he could no longer work for Concord and, on Oct. 2, he told the supervisor of the work site where he was working that day that he was quitting and walked off the job. Rothberger sued for constructive dismiss- al, claiming the note on his pay slip amount- ed to a change to his terms of employment and the Oct. 1 email was an implied threat. Together, these constituted constructive dismissal, said Rothberger. Rothberger also filed a claim for unpaid overtime and was awarded back pay for the six months prior to the day he stopped working for Concord. Six months was the maximum period of time for which unpaid overtime could be awarded under the Em- ployment Standards Act. e court found after Rothberger re- ceived the note, he made attempts to discuss the matter but was brushed off. e note clearly stated that Concord was going to deduct future costs from Rothberger's pay- cheque, which was contrary to the act, and when Rothberger pointed out the illegality of it he was answered with a threatening and provocative email, not to mention "wholly unresponsive to (Rothberger's) legitimate effort to have (Concord) resile from its stat- ed intention to charge him with respect to future incidents," said the court. e court also found the note with his paycheque warning of the deduction of an unspecified amount "was a material change to the employment contract, which entitled (Rothberger) to receive an hourly wage for hours worked." In addition, the court agreed it was contrary to the act and an infringe- ment of Rothberger's rights, since the vague- ness of the note gave no indication of how much the threatened deductions would be. Since Concord's actions constituted a change in Rothberger's compensation pack- age — which was at the heart of the employ- ment contract — and amounted to construc- tive dismissal, the court found Rothberger didn't have to continue working and wait for the deduction policy to take effect. e court also found Concord's conduct in how it communicated with Rothberger breached the "fundamental term of any em- ployment relationship that the employer will treat the employee with civility, decency, re- spect and dignity." e court determined if Rothberger had not been constructively dismissed, he would have worked full-time until the end of the busy season in mid-November 2012 and started again in early January, as in most other years. Rothberger found new em- ployment in early March 2013, so the court found he was entitled to compensation for 12 weeks of lost employment. With vacation pay added, the total damage entitlement was $15, 264. For more information see: • Rothberger v. Concord Excavating & Con- tracting Ltd., 2015 CarswellBC 1191 (B.C. S.C.). transfer to Vancouver, the employee refused and claimed constructive dismissal. e court agreed that the employee had been constructively dismissed, and noted that the move to Vancouver would have caused a significant increase in the employee's travel time and required him to work longer hours. e question of whether an employer is required to pay an employee extra for time spent travelling on business trips will also depend on the individual circumstances. If an employee occupies a managerial role that includes business travel and is paid a salary regardless of the hours of work performed, then absent a specific contractual entitle- ment, it is unlikely the employee will be able to claim extra pay for business travel. Non-managerial employees, on the other hand, will normally be entitled under em- ployment standards legislation to be paid wages for "work" performed for the employ- er. is may sometimes include travel time. Generally speaking, the time such em- ployees spend commuting is not compen- sable. However, if an employee has a usual workplace but is required by the employer to travel to another city, the time travelling to and from the other city is likely to count as work time. Also, employees who work at several job sites will usually be entitled to be paid for the time spent travelling from site to site, although the time spent driving to the first site will likely be considered a commute for which wages are not payable. Where non-managerial employees are re- quired to travel, time spent travelling during the normal work day will normally be com- pensable. Employees may also be entitled to payment for time spent on flights and in air- ports outside business hours, although time spent in hotels and restaurants outside the work day will usually not be compensable. To avoid uncertainty, employers should ensure their policies, employment contracts and job descriptions clearly articulate busi- ness travel requirements and entitlements. Employers should also check the employ- ment standards laws in their jurisdiction re- garding the treatment of travel time. For more information see: • Halliday v. Van Toen Innovations Incorpo- rated, 2013 CarswellOnt 11591 (Ont. Hu- man Rights Trib.). • Owens Illinois Canada Inc. c. Boivin, 1988 CarswellQue 104 (Que. C.A.). • Reynolds v. Innopac Inc., 1998 CarswellOnt 229 (Ont. C.A.). Colin G.M. Gibson is a partner with Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@har- risco.com. Business trips « from ASK THE EXPERT on page 2 « from EMPLOYER'S THREAT on page 1 Worker tried to discuss note

• Cover