Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com 2 | June 21, 2017 with Brian Johnston Ask an Expert Canadian HR Reporter, a Thomson Reuters business 2017 2 | June 21, 2017 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Purchasing a business and rehiring its employees Question: If a company purchases a business that was going under and had dismissed several employees, can it hire some of the former employees of that business to do similar jobs without it being considered an unbroken term of employment? How much time has to pass to be considered a break in employment? Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Answer: Yes, the purchaser can re-hire em- ployees of a business that went under who had been dismissed and begin a new em- ployment relationship. e issue of whether there has been a break in service may be sig- nificant for the purpose of determining the length of the notice period if the purchaser subsequently dismisses the employee. e best approach is to firmly establish a new relationship based upon a written employ- ment agreement which is absolutely consis- tent with new or fresh employment (such as a probationary period, no credit for prior ser- vice, or a waiting period for benefit coverage). Employers should be aware of several potentially applicable provisions in employ- ment standards legislation which prevent an employer from arguing that there is no break in employment. First, employers must be mindful of sale of business provisions. In Nova Scotia, the Labour Standards Code contemplates that if a business is disposed of, the period of em- ployment of an employee of the business is deemed to have been employment with the purchaser. Alberta has an almost identi- cal provision in its Employment Standards Code). Ontario has a similar provision in its Employment Standards Act, 2000, but it does not apply if the purchaser hires the employee more than 13 weeks after the ear- lier of the employee's last day of employment with the seller or the day of the sale. Second, the layoff provisions in employ- ment standards legislation may also be rel- evant if the purchaser rehires a dismissed employee. For example, the Nova Scotia Labour Standards Code defines a period of employment as including "any period on lay off or suspension of less than 12 consecutive months" and s. 77(3) states that successive periods of employment constitute one pe- riod of employment, except when successive periods of employment are more than 13 weeks apart. is does not mean that there has to be a 12-month break but the purchas- er of a business must be mindful to ensure that the original dismissal cannot be framed as a layoff rather than a termination. However, a clearly defined contract es- tablishing that this is a new employment relationship will likely suffice in rebutting the presumption of a continuous period of service. Courts and tribunals will examine the full context of the employment relation- ship to determine whether there has been a break of service, the reasons for that break and whether the new employer treated the employee as a new employee or not. For more information see: • George v. Cowichan Tribes, 2015 BCSC 513 (B.C. S.C.). Personal days and religious holidays Question: If an employer offers all employees a certain number of floating personal days in addition to statutory holidays, does it have to grant additional days off to non-Christian employees for their holidays or can it order them to use their personal days? Answer: e answer turns on a combination of an employer's "personal day" policy and human rights considerations. Employment standards legislation dictates statutory holi- days but is silent about personal days. e concept of "floating personal days" is more prevalent in the U.S. than in Canada. e idea is simple; an employee is given sev- eral – often paid – floating personal days per year which she can use for personal reasons, including religious holidays. Em- ployers offer floating personal days to em- ployees and so employees will largely have unlimited discretion in choosing their days off. If an employer wanted to try to limit this discretion, it would have to create a policy for religious holidays. Any such policy should be based on the law which has grown out of human rights decisions. Discrimination on the basis of religion, creed or religious belief with respect to employment is widely prohibited in Canada. A schedule of work based on holidays recognized under provincial employment standards legislation is secular in nature and non-discriminatory on its face but a work calendar which permits time off to celebrate the Christian holidays such as Christmas and Good Friday, but requires work on holy days of other religions is discriminatory in effect (see Markovic v. Autocom Manufacturing Ltd.) e employer has a duty to reasonably accommodate employees seeking time off for religious observances and the employee has an obligation to participate in this pro- cess. In most circumstances, accommoda- tion can be achieved through scheduling changes which do not result in a loss of pay; "where the 'problem' is the need for time, the solution is the enabling of time," as the court in Markovic stated. Courts and tri- bunals have suggested that the appropriate approach is for an employer to provide an employee with options to accommodate time off work for religious observances, in- cluding making up the time on another day, working on a secular holiday when the fa- cility is operating, switching shifts, adjust- ing shift schedules, using outstanding paid vacation or providing a leave of absence without pay: see, for example, Richmond v. Canada (Attorney General). e Supreme Court of Canada's decision in Chambly (Commission scolaire régio- nale) c. Bergevin is an example of a work- place where scheduling changes could not provide a reasonable accommodation because teachers can only teach when the school is open and the school board was re- quired to provide three days of paid leave. However, Chambly was a labour law case decided on its own facts. e predominant view is that reasonable accommodation generally does not require paying employ- ees for time off for religious observances. An employer should try to reasonably accommodate an employee seeking time off for religious holidays. In the absence of a policy, the employer cannot order an employee on how to use her personal days. However, given that most employers can accommodate through scheduling changes which do not result in a loss of pay and that employees are not required to be paid for time off for religious observances, it is more likely than not that the employee will use floating personal days for religious holidays if she wants to be paid for these days. For more information see: • Markovic v. Autocom Manufacturing Ltd., 2008 CarswellOnt 5936 (Ont. Human Rights Trib.). • Richmond v. Canada (Attorney General), 1997 CarswellNat 564 (F.C.A.). • Chambly (Commission scolaire régionale) c. Bergevin, 1994 CarswellQue 78 (S.C.C.). Brian Johnston, Q.C., is a partner with Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewart- mckelvey.com.

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