Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com 2 | March 29, 2017 with Brian Johnston Ask an Expert Canadian HR Reporter, a Thomson Reuters business 2017 WEBINARS Interested in learning more 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 compliance under the Ontario's sexual violence and harassment plan act, managing hidden disabilities, harassment investigations, and HR and payroll implications of employee terminations. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. An employer is best served by seeking to have the amount of employee notice reflected in the employment agreement. Employee notice of resignation Question: Can an employer demand a certain amount of notice of resignation? If an employee in an important position doesn't provide notice of resignation, does the employer have any recourse? Answer: Yes, in addition to any statutory obligations on an employee, an employer can insist on reasonable notice of resigna- tion from an employee. Many employment standards legislation specify the amount of notice that the employee must provide — typically it is no more than two weeks' notice if the person has been employed for two years or more. Absent a specific contractual provision, that which constitutes reasonable notice will be subject to the same type of review as a court undertakes in assessing wheth- er an employer has provided reasonable notice to an employee in a non-just cause situation. e amount of reasonable notice that the employee must provide depends upon a number of factors including the sig- nificance of the position occupied by the employee and the ease (or difficulty) the employer will encounter in replacing the employee. For example, in Consbec Inc. v. Walker, the British Columbia employer remained successful in obtaining damages as a result of the employee not providing reasonable notice to Consbec when he quit his job. However the damages awarded at trial were significantly reduced by the province's Court of Appeal. An employer is best served by seeking to have the amount of employee notice re- flected in the employment agreement. For example in BlackBerry v. Marineau-Mes, BlackBerry was successful in enforcing a provision in the employment agreement that the employee was obliged to provide six months' notice. e reasonableness of that contractual provision was assessed in relation to the level of position that the em- ployee, Marineau-Mes, held and the nature of the industry. As the requirement of an employee to provide reasonable notice — as opposed to statutory notice — absent specific contrac- tual language is seemingly not well known, it is helpful for the employment contract to define what the parties contemplate as being reasonable notice. Of course the amount of notice will depend on the par- ticular circumstances of the employment relationship (the employee's duties, length of service, and how long it would take the employer to deal with the employee's de- parture), and a court may ultimately have to be satisfied that it is reasonable in the circumstances. e failure of an employee to provide reasonable notice or the notice specified in the contract as the case may be, provides the employer with recourse to sue for dam- ages arising out of the breach — such as increased recruitment costs and lost busi- ness. e employment contract can also define the employer's remedies. e requirement of the employee to pro- vide notice under statute does not dimin- ish the employee's contractual obligation to provide reasonable notice. For more information see: • Consbec Inc. v. Walker, 2016 CarswellBC 642 (B.C. C.A.). • BlackBerry Ltd. v. Marineau-Mes, 2014 CarswellOnt 3522 (Ont. S.C.J.). Assigning vacation time Question: Can employee vacation time be assigned to specific dates without employee input? Answer: Yes. Both employment standards legislation and any written employment agreements are relevant to this question. Employment standards legislation con- templates that the employer can assign va- cation. However there are typically some parameters around that assignment. For ex- ample, employees are usually entitled to take their vacation annually. Some legislation con- templates that a certain number of vacation days must be consecutive. Most require that a certain amount of notice must be provided to the employee of the upcoming vacation (be- tween one and four weeks as examples). Also, some statutes contemplate that vacation pe- riods made be directed to be taken at certain times (such during a workplace shutdown). As legislation varies from jurisdiction to jurisdiction, it may be appropriate to capture the employer's right to assign vacation — subject to any constraints — in an employ- ment agreement. Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@ stewartmckelvey.com.

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