Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | August 19, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Employees working alone Question: What are an employer's health and safety obligations for employees who work alone? Terminating new hire before she starts the job Question: If an employer decides to terminate a new worker's employment after the worker has signed an offer or employment agreement but before the worker has actually started work, what sort of notice or compensation would the employee be entitled to? Answer: Employment standards legislation does not address the revocation of accepted job off ers. As such, the obligations owed by an employer to an employee who was "terminat- ed" prior to commencing work are governed by common law. At common law, there is debate as to whether revocation of an accepted employ- ment off er prior to commencement of ser- vices can give rise to a wrongful dismissal ac- tion, or if such action must be characterized as a breach of contract. Regardless of the proper characterization, the evaluation of damages in such cases are the same as cases where a working employee was wrongfully dismissed -- that of reasonable notice. Courts have rejected the argument that since an employee had not yet commenced employment at the time the off er was revoked, she is not entitled to notice. Rather, in cases where the employee was not given the op- portunity to commence services, courts have focused on relevant factors aside from the length of service to calculate reasonable no- tice, including the employee's qualifi cations, the level of remuneration of the position, the level of responsibility and skills required, in- ducement, re-employment prospects and availability of similar alternate positions. In many cases, the employee was awarded with relatively signifi cant pay in lieu of notice even though services had not commenced. In underchild v. Nog-Da-Win-Da-Min Family & Community Services, the Ontario Superior Court found that a prospective em- ployee was entitled to reasonable notice as a result of the employer's withdrawal of an accepted employment off er. e court took into account the senior rank of the position, the high level of skills and responsibility re- quired, and the fact the employee was un- likely to fi nd similar employment in the area, and concluded that she was entitled to four months' pay in lieu of notice. Inducement can signifi cantly increase the amount of notice an employee is entitled to. In Horvath v. Joytec Ltd., the Saskatchewan Court of Queen's Bench found that by post- poning the employee's start date by over six months, the employer had breached the contract to employ the employee. In assess- ing the amount of damages, the court took into account the fact the employee was in- duced by the employer to leave her previous job (among other factors) and awarded the employee with damages in the amount of six months' salary in lieu of notice. Human rights legislation prohibits dis- crimination in employment practices on the basis of numerous protected grounds, including physical disability, mental dis- Answer: Many workers routinely work alone at their worksites, for instance con- venience store clerks, truck drivers and security guards. ose workers are subject to enhanced workplace health and safety risks, as assistance is often not readily avail- able in the event of an emergency or if the worker is injured or ill. An employer's health and safety obliga- tions toward workers who work alone are governed by Occupational Health and Safe- ty (OHS) legislation. Five Canadian provinc- es have specifi c "working alone" provisions in their OHS legislation, specifi cally Alberta, British Columbia, Manitoba, New Bruns- wick and Saskatchewan. While the "working alone" provisions vary between the jurisdic- tions, the common purpose is to mandate measures and safety precautions to ensure the safety of workers working by themselves. Further, while the remaining provinces and the federal government do not have specifi c legislative provisions regarding "working alone," the Canada Labour Code and OHS legislation in all provinces require that em- ployers maintain a safe working environ- ment for their workers. As such, workers in all jurisdictions should be aff orded a similar degree of protection when working alone. In Alberta, Part 28 of the Occupational Health and Safety Code, 2009, sets out specifi c rules governing situations where employees work alone. To fall under the "working alone" protections in Part 28, a worker must be working alone at a work site where assistance is not readily available if there is an emergency or the worker is in- jured or ill. Once a worker meets that defi - nition, the code imposes special obligations on the employer. First, the employer must assess the work site to identify existing and potential hazards as well as measures need- ed to correct any hazards. Second, the em- ployer must establish an eff ective commu- nication system to provide the worker with a method of signaling need for assistance. is communication system can consist of radio communication, landline or cellular telephone communication or some other eff ective means of electronic communica- tion. e key is to ensure that workers who require assistance have the ability to con- tact someone capable of providing such as- sistance. Even with eff ective communication equipment, there may be times when a worker is unable to use such equipment to signal for help. As such, the employer must establish a system where regular contact is initiated by the employer or the employer's designate at intervals appropriate to the nature of the hazard associated with the work. Further, In the event eff ective electronic communication is not practicable at the particular work site, the employer must ensure that the employer or its designate visits the worker or the worker contacts the employer at intervals appropriate to the nature of the hazard associated with the work. In all the provinces that specifi cally regulate "working alone," the employer is required to conduct a hazard assessment and develop controls to reduce the risks as- sociated with the identifi ed hazards. Diff er- ent provinces, however, may have specifi c "working alone" requirements not found in other provinces. For instance, in Brit- ish Columbia, the "working alone" section in WorkSafeBC Occupational Health and Safety Regulation contains specifi c rules re- garding working late at night in retail outlets. All employers should consult with the appli- cable OHS legislation in their jurisdictions to ensure that their "working alone" policies and practices are in compliance with legisla- tive requirements. Factor determining notice include employee's qualifi cations, level of pay and responsibility, and skills INDUCEMENT on page 6 »

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