Canadian Employment Law Today - sample

6 | November 9, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 WEBINARS Interested in learning about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as Ontario's new sexual violence and harassment legislation, compliance with the Temporary Foreign Worker Program, managing hidden disabilities in the workplace, and workplace harassment. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. actively working — would end when the em- ployee reached 65 years of age. At that point, the pension benefits earned under the com- pany's pension plan would kick in. In 2014, Austin suffered a medical issue that required some recovery. By October of that year, she felt stronger and more confi- dent, so she thought she could try to return to work after 12 years of LTD leave. She saw her doctor, who informed Bell that Austin was ready to try to return to work. Over the next couple of months, Austin kept in con- tact with Bell as a plan was formulated for a graduated return to work in an accommo- dated position. e return-to-work plan involved Austin working at a Bell location in Mississauga, Ont. However, Austin's lawyer wrote to Bell saying working at that location would cause undue hardship for Austin. e lawyer then asked about the possibility of an exit package for Austin. Bell advised Austin that it would accom- modate her further by allowing her to first work at home and then out of its office in London, Ont., closer to her home. e com- pany didn't hear from Austin until nearly a month later, on Jan. 3, when Austin wrote to say she wasn't well enough to return to work and was going to be reassessed by her doctor. Bell requested Austin submit an updated physician's report so it could evaluate her continued eligibility for LTD benefits. Aus- tin's lawyer once again asked about a package as an incentive to retire but Bell replied that Austin was not being terminated and there was no package. Worker faced choice at age 65 On Feb. 5, 2015, Bell received a physician's report stating Austin would be unable to re- turn to work in the foreseeable future. How- ever, that month Austin turned 65 years old, so Bell informed her that her LTD benefits would be discontinued and she could start receiving a pension. e company said if Austin chose not to start receiving her pen- sion, she would be considered to be on an unpaid leave of absence. Normally, employees receiving LTD benefits were sent their pension kit three months before they turned 65 so they would start receiving their pension on time. How- ever, Austin didn't receive hers until January 2015 — two months before her birthday — because of her plan to return to work in Oc- tober 2014. Austin signed her pension forms on March 7. In April, she started to receive pen- sion payments from Bell. In May 2015, Austin filed an unjust dis- missal complaint, claiming Bell construc- tively dismissed her by discriminating against her on the basis of age and forcing her into retirement by terminating her LTD income. Austin argued Bell's LTD plan stated that all regular employees were eligible for the plan so, with no mandatory retirement at 65, there was nothing preventing Bell from con- tinuing her LTD payments past age 65. Bell's discontinuance of LTD payments forced to make a choice to either go on unpaid leave or give up her employee status and retire. Financial necessity required her to retire so she would receive pension income, said Aus- tin, and this duress constituted constructive dismissal. Austin also sought a declaration that the provision in Bell's income protection pro- gram terminating LTD payments at age 65 was unlawful and unenforceable. e adjudicator found that the Canadian Human Rights Benefits Regulations under the Canadian Human Rights Code specifi- cally allow insurance plans to end benefits for employees who reach "not less than 65, or the normal pensionable age under the pension plan of which the employee is a member, whichever occurs first." As a result, it wasn't illegal for Bell to discriminate based on age when it came to LTD benefits at age 65, said the adjudicator. "When LTD payments to Mrs. Austin ceased when she reached the age of 65 it was not the result of a discriminatory pro- vision or practice that was illegal, but rath- er because it was in compliance with Bell Canada's LTD plan, the terms of which had not changed since 1992, and a provision specifically permitted under the Canadian Human Rights Regulations," the adjudica- tor said. e adjudicator also found there was no duress for Austin when she chose to end her employment and begin receiving pen- sion payments. ough the choice may have been difficult for her, there was no evidence showing Bell threatened or coerced her into choosing one option over another. In addition, the adjudicator noted there was no "unexpected or unavoidable event" that negatively affected the employment contract that could warrant severance pay. Bell didn't terminate Austin's employment; rather, she elected to take her pension and no longer be an employee, leaving no consideration for severance or reasonable notice. e adjudicator determined Bell Canada properly terminated Austin's LTD benefits as allowed under the LTD plan and did not place her under any duress that affected her decision to retire and begin receiving her pension. Austin's claim was dismissed. For more information see: •Austin and Bell Telephone Co. of Canada, Re, 2016 CarswellNat 4451 (Can. Lab. Code Adj.). Insurance plans allowed to end benefits at 65 When LTD payments ended at age 65, it wasn't the result of a discriminatory practice, but rather it was in compliance with the LTD plan, unchanged since 1992 and legally permitted. « from ENDING on page 1

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