Canadian HR Reporter

CANADIAN HR REPORTER October 17, 2016 EMPLOYMENT LAW 5 Order your copy today. Visit www.carswell.com or call 1.800.387.5164 for a 30-day, no risk evaluation GET INSTANT ACCESS TO YOUR LEGAL COMMUNITY 2017 British Columbia Legal Telephone Directory INCLUDES BRITISH COLUMBIA, NORTHWEST TERRITORIES, NUNAVUT AND YUKON. British Columbia's vast legal community is right at your fingertips with the British Columbia Legal Telephone Directory. Get quick access to: • Courts • Judges and court officials • Law related services and organizations • Federal and provincial government departments • Boards and commissions • Notaries • Shorthand Reporters • Land surveyors • Paralegals Searching is fast and easy with: • Alphabetical and geographical listing of lawyers • Alphabetical and geographical listing of law firms • Alphabetical listing of judges NEW EDITION Spiralbound • October 2016 $47.50* • L7798-5931 Multiple copy discounts available *Plus applicable taxes and shipping & handling (Prices subject to change without notice) Jeffrey Smith Legal View Ambiguous termination clause doesn't exclude common law notice Stated notice 'in accordance' with legislation but didn't limit it to minimum: Court A termination provision in an employment contract can allow for a notice entitlement in line with employment standards mini- mums, but the language must be clear in order to circumvent common law reason- able notice entitlements, the Nova Scotia Supreme Court has ruled. Robert Bellini, 63, was a senior mechanical engineer at PROJEX Technologies, an engineering firm in Halifax. He joined PROJEX on April 12, 2012. In July 2013, PROJEX was pur- chased by another company, Aus- enco Engineering. Once Ausenco gained control, it gave Bellini a new employment contract with a termination clause. e clause stated "if it becomes necessary for us to terminate your employment for any reason other than cause, your entitlement to advance working notice or pay in lieu of such notice will be in accordance with the provincial employment standards legislation." e contract also recognized seniority from his service under the previous employer. Bellini was given the oppor- tunity to have independent legal advice and he signed the contract on July 10, 2013, and officially started working for Ausenco 12 days later. On June 17, 2015, Ausenco ter- minated Bellini's employment due to a lack of work. e company paid him all outstanding wages and benefits, as well as an addi- tional two weeks' salary and health and dental coverage until the end of the month in lieu of notice. But Bellini sued for wrong- ful dismissal, seeking damages for breach of his employment contract. He argued that the contract's termination provision did not eliminate his right to common law reasonable notice, so he was entitled to more than just the minimum notice under the Nova Scotia Labour Standards Code — which was two weeks for a period of employment "two years or more but less than five years." Contracts must specifically exclude common law notice The court noted it had been "well-established" that indefinite employment contracts required reasonable notice for dismissal without cause if they didn't contain express language to the contrary. It pointed to the Ontario Court of Appeal's 2012 decision of Bowes v. Boss Power Products Ltd. that stated, "ere is a pre- sumption that unless there is an agreement with express language to the contrary, an employee is entitled to reasonable notice of termination." Employers and employee can agree to substitute a fixed period of notice displacing the common law reasonable notice period — as long as it doesn't violate the statu- tory minimum — but this must be clearly stated in the contract, said the court. Ausenco argued the termina- tion provision's existence indi- cated an intention to contract out of any common law reasonable notice requirement for the mini- mum outlined in the provincial employment standards legisla- tion, as stated in the contract. e company pointed out that the code stipulates "nothing in this act affects the rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to him than his rights or benefits under the act," as long as the minimums were maintained as the floor for such entitlements. However, the company argued there were no specific terms in Bellini's contract providing for anything greater than the minimum. But the court found there was ambiguity in the termination provision of Bellini's employment contract, which left the door open for common law notice entitlement. "e provision in this case is at best ambiguous as to whether the parties intended the statu- tory minimum to apply, or sim- ply whether the applicable notice would be consistent with the leg- islation," said the court. "It would not be difficult for an employer to draft a termination clause that leaves no doubt as to the parties' intention to oust com- mon law notice. is language does not do that." e court determined it could not apply an interpretation to contractual language that didn't specifically describe it — such as replacing Bellini's common law notice entitlement with the legis- lative minimum notice. As a result, since the contract didn't clearly state the intention of the parties was to forego com- mon law notice, Bellini still had an entitlement to reasonable notice under common law standards. Having established the reason- able notice entitlement was still in effect, the court looked at the factors established in Bardal v. Globe & Mail Ltd. to determine the amount of notice entitlement. Bellini was employed with Aus- enco and its predecessor, PROJEX Technologies, for more than three years. His position didn't have execu- tive or managerial responsibilities but, as senior engineer, he offered guidance to junior engineers. Bellini was over 60 years old when he was dismissed but had a history of short-term employ- ment and a "highly-transferable skill set." However, the court found he shouldn't be expected to relocate at his age. After considering the Bardal factors, the court determined Bellini was entitled to six months' reasonable notice. Ausenco was ordered to provide Bellini with compensation and benefits equal to six months' work. For more information see: •Bellini v. Ausenco Engineering Al- berta Inc., 2016 CarswellNS 735 (N.S. S.C.). Jeffrey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. Employers and employee can agree to substitute a fixed period of notice... but this must be clearly stated in the contract, said the court. opportunities to take initiatives and to be recognized for their contributions." Stress in and of itself can be managed, said Spetch, and there are a lot of things employers can do to stop job stress from leading to burnout. "One of them is helping em- ployees have control over what they're doing… and increasing flexibility, so whether that flex- ibility is in terms of their actual job-related tasks or whether that's flexibility in terms of being able to telecommute or flex your time. But having employees have more control certainly is a big factor." A huge factor for burnout is when people are in a high-de- mand, low-control environment, so part of the solution is workload management but it's also looking at things like technology to help improve efficiency, she said. "How can you look at having employees be a part of the pro- cess in designing how their work gets done? How do you give man- agers the right tools to be able to support employees... in terms of their psychological health in the workplace?" And encouraging employees to take breaks helps them un- derstand the law of diminishing returns at work, said Spetch, "so if you don't take a break, then you become less and less productive if you don't have a chance to rejuve- nate and be well." Leading by example It's also about leading by example, which means leaders should not be expecting employees to answer emails after hours and should be demonstrating work-life balance, she said. "Leading by example is a huge, important way to show support." Finding that balance point be- tween pushing people to do more and not pushing them too far is the refined art of managing, said Leiter. "It is necessary to have a good and accurate awareness of the job and of the range of individual capabilities in one's team for a manager to find the right balance. It also goes to employees' sense of justice: What is a fair and un- fair expectation is a dynamic is- sue. Good management requires careful listening and sensitivity to employees' understanding of expectations." Encourage breaks 'BURNOUT' < pg. 2

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