Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 must provide compensation for the extra time and expense incurred in getting there. In Re Simon Fraser Health Region and British Columbia Nurses' Union, the arbi- trator accepted the union's argument that travel time to an orientation held outside of the employee's normal workplace should be treated as time worked and therefore pay- able at the applicable rate, under general principles of arbitral jurisprudence that time spent travelling to a distant location for the purposes of carrying out an assignment con- stitutes time worked. Arbitrators have also rejected the argu- ment that an alternate location must be dis- tant to be compensable. Absent any contrary agreement, travelling to another location outside of your regular workplace can be compensable if it involves some "measurable inconvenience." Measurable inconvenience has been interpreted to include additional traffic congestion or additional travel time. Employers have also been held to have an implied obligation to pay for travel expenses when an employee is travelling to an offsite location unless the agreement provides oth- erwise. erefore, travel allowances should be tailored to meet the specific circum- stances of each work environment and any disputes should be resolved by the language of the agreement rather than by overriding principles of arbitration law. For more information see: • Jones v. Tsige, 2012 CarswellOnt 274 (Ont. C.A.). • Allison v. 3359492 Canada Inc., 2016 CarswellOnt 1527 (Ont. Lab. Rel. Bd.). • Simon Fraser Health Region v. B.C.N.U., 2000 CarswellBC 3025 (B.C. Arb.). Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com. Inconvenience, not necessarily distance, a factor Canadian Employment Law Today | 7 More Cases/Ask an Expert Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as employee personal leaves, definition of the workplace, fixed-term contracts, and workplace harassment. You can view the blog at www.employmentlawtoday.com. « from EMPLOYER on page 1 Charge for retrieving vehicle was arbitrary and illegal Travel allowances should be tailored to meet the specific circumstances of each work environment and should be incorporated into employment agreements. was the case, he was to drive his truck back to Lansdowne and his transportation back to Moncton would be arranged. Martin didn't believe the owner regarding the transportation back home, so he drove his truck to Moncton and left it at Donnelly's facility there — the same location where he had originally picked up the truck after he was hired. e owner and another employee travelled from Lansdowne to Moncton to retrieve the truck and its trailer and bring it back to Lansdowne. It then deducted the cost of that trip from Martin's final paycheque — a total of $831.20. Martin filed a complaint with Employment Skills Development Canada for the deducted amount, and ESDC issued a payment order to Donnelly for that amount plus $5.20 in vacation pay owed to Martin under the Canada Labour Code. Donnelly appealed the order to the Minister of Labour. e matter was referred to an adjudicator, who noted that the code prohibited deductions from employee wages unless authorized in writing by the employee, required by legislation or court order, or were overpayments by the employer. e adjudicator found no evidence that Martin was given an orientation or an op- portunity to question the contents of the employment contract before he signed it. It was also notable that most of his loads were picked up at the Moncton facility, which was frequently used by Donnelly. is would suggest there was no real finan- cial loss suffered by the company by Mar- tin leaving the truck at its Moncton facility, said the adjudicator. e adjudicator also found the contract stipulated the truck was to be returned to the company, not specifically the Lans- downe location. As for the $2-per-mile charge mentioned in the contract, the adju- dicator found this was an arbitrary amount and didn't reflect the true cost of retrieving the vehicle. Instead, it was more likely "pe- nal in effect," which wasn't allowed by New Brunswick legislation. e adjudicator noted that the ESDC labour standards guidelines indicated that deductions approved by employees had to be for specific sums, not blanket amounts. To meet these requirements, written authorizations had to be obtained after the incident or transaction to which the deduction was related. e adjudicator determined Donnelly Farms didn't have proper written authorization from Martin to deduct the amount from his final paycheque and Martin complied with the terms of the employment contract. e payment order was upheld and Donnelly Farms was ordered to pay Martin $836.40. See Donnelly Farms Ltd. and Martin, Re, 2016 CarswellNat 3790 (Can. Labour Code Adj.). « from ASK AN EXPERT on page 2

• Cover