Canadian Employment Law Today

May 10, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Have a question for our experts? Email with Stuart Rudner Ask an Expert RUDNER MacDONALD TORONTO 2 | May 10, 2017 Eliminating company credit cards for expenses Question: Is it legal to expect employees that once had a corporate credit card to now cover weekly travel expenses on their own personal credit card? Have a question for our experts? Email 2 | May 10, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Answer: To begin with, there is no law that would prevent an organization from having a policy of this nature. While some organi- zations provide corporate credit cards, most do not, and employees incur expenses for which they are reimbursed. is question relates to a change in prac- tice. Since a change to the terms and condi- tions of employment can be a constructive dismissal, it is important to assess any risk before imposing such a change. To consti- tute a constructive dismissal, there must be a substantial change to a fundamental term of the agreement. It is difficult to see how a claim of constructive dismissal based on this set of circumstances could succeed, unless the employee could show that the change would have a substantial negative impact on her. For example, if the employee routinely incurs extensive expenses that she cannot af- ford to carry until they are reimbursed, that might be cause for concern. Otherwise, it is unlikely that this kind of alteration to the em- ployer's practices will be enough of a change to the terms and conditions of employment to constitute a constructive dismissal. at being said, the employer would be prudent to provide reasonable notice of the change prior to implementation, clearly in- forming employees of the change and provid- ing details of the new policy — for example, how to obtain reimbursement, the expected turnaround time for reimbursement, and how expenses will be approved. Since em- ployees may wonder why the change is being implemented (and if it is an indication of the financial condition of the organization), they may want to explain the rationale. Requiring credit cards for employment Question: Can a credit card be a requirement of employment for jobs that incur expenses to be reimbursed? Answer: ere is nothing legally wrong with requiring that employees be able to in- cur expenses on behalf of the organization that will be reimbursed. Typically, to be able to do so, they will have to have a valid credit card. An individual's credit status is not a protected ground under human rights legis- lation or the law generally; it is not illegal to choose not to employ a candidate because she does not have a credit card or because she is unwilling to use a personal credit card for employment-related expenses. If this is going to be a requirement of the position, this should be made clear in all hir- ing materials and job postings — this is no different than requiring that candidates have a valid driver's licence and unrestricted ac- cess to a vehicle for purposes of the job. ere may be a theoretical risk of a claim under the Ontario Human Rights Code for a reason other than credit status. Section 5 prevents employment-based discrimina- tion on the basis of the individual's Record of Offences. ere are certain fraud-related offences which have long-term impacts on an individual's ability to obtain credit. If an individual is unable to obtain a credit card because of her criminal record, and she is not hired as a result, she may claim that she is being discriminated against because of a protected ground. At most, however, the risk of this is minimal. Extending a probationary period Question: If an employer isn't sure how a probationary employee is working out, is there a recognized limit to how many times it can extend the probationary period? Answer: Contrary to popular belief, there is no automatic probation period for em- ployees. Some employment standards legis- lation, such as the Employment Standards Act, 2000 (Ontario), does not require notice of termination pay during the first 90 days of employment, which is often construed as a probationary period though it is not la- belled as such. However, unless the contract provides otherwise, the employee will still be entitled to reasonable notice pursuant to common law. If an employer wants to treat this period as a probationary period, such that it can dismiss an employee without providing notice, this must be established by including a clause to this effect in the em- ployment agreement. e contractual clause should clearly set out the implications and entitlements. Sim- ply saying that "the employee will be subject to a three-month probationary period," for example, is arguably ambiguous and may not relieve the employer of the obligation to pro- vide notice of dismissal. Rather, the clause should clearly state that the employee can be dismissed without cause or notice during the first 90 days of employment. e clause can also provide the employer with the right to extend the probationary pe- riod. However, the minimum notice require- ments of applicable legislation must be met. In Ontario, this means that once the em- ployee has been employed for three months, she is entitled to one week of statutory notice or the equivalent pay in lieu of notice unless there is just cause to dismiss her. Removing common law notice in this period is possible, however, by including a clause to this effect in the employment agreement. If an employer intends to include a pro- bationary period in the employment agree- ment, it is crucial to include wording which dispenses with reasonable notice in the common law. Do not think that a short-ten- ure employee is not owed reasonable notice at common law. Courts have awarded terms of reasonable notice longer than an employ- ee's tenure at their job! In the 2012 Ontario decision Cao v. SBLR LLP, for example, an employee six weeks into her probationary period was dismissed. She sued in Small Claims Court and was awarded a reasonable notice of four months. For more information see: • Cao v. SBLR LLP, 2012 CarswellOnt 9184 (Ont. S.C.J.). Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is the author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a om- son Reuters business. He can be reached at is article was co-written by Geoffrey Lowe, an associate with Rudner MacDonald. Geoffrey can be reached at GLowe@rud-

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