Canadian Employment Law Today

August 16, 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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©2017 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 12 YOU MAKE THE CALL Was JPP entitled to withhold Krushel's fi nal paycheque to cover the advance it had paid earlier? OR Was Krushel entitled to her fi nal paycheque? IF YOU SAID Krushel was entitled to her fi nal paycheque, you're right. A labour inspector determined that the Canada Labour Code did not entitle an em- ployer to withhold wages for short notice of resignation — nor was there a written con- tract with any notice requirement — and Krushel herself had not received any ad- vance or portion of the advance given to her husband's corporation. As a result, JPP was ordered to pay Krushel her fi nal paycheque. JPP appealed to an adjudicator, but the adjudicator upheld the order to pay. JPP's records indicated Krushel was hired on Oct. 6, 2014, with her husband and performed log book auditing, but this was incorrect. Only her husband was hired at that time and Krushel was only offi cially hired in January 2016, said the adjudicator. JPP was ordered to pay Krushel $4,428.93 in unpaid wages and noted that if the company wanted to try to get back the advance it paid Krushel's husband's corporation, it would have to pursue the matter in court. Krushel wasn't responsible for it. For more information see: • JPP Transport Ltd. and Krushel, Re, 2017 CarswellNat 2260 (Can. Labour Code Adj.) Long-haul truck driver can't deliver last paycheque THIS INSTALMENT of You Make the Call features a truck driver whose fi nal paycheque was withheld by the employer looking for repayment of an advance it had given more than one year earlier. Laurel Krushel was a long-haul truck driver for JPP Transport, a trucking company based in Surrey, B.C., for a few months in 2016. Her husband initially worked for JPP as a truck driver beginning in October 2014 while she was in Winnipeg to visit her dying mother and then her mother's funeral. She fl ew to and from Winnipeg on her own money and her mother's estate paid for the funeral on Oct. 4. Krushel's husband was hired on Oct. 6, 2014, and asked JPP for an advance on a consultancy contract he had signed with the company. e contract was for dispatch, safety offi cer, compliance maintenance, log book auditing, and other services, and Krushel's husband said the money was needed to cover costs for Kushel's travel to Winnipeg and the funeral. JPP agreed to the advance and wrote a cheque for $2,500 to Krushel's husband's corporation. Krushel wasn't aware of this payment. JPP paid Krushel's husband for various services from fi ve invoices over the next three months. It wasn't clear if any deductions were made for the advance JPP had already paid Krushel's husband. During this time, Krushel helped her husband with auditing driver logs because she had more than 25 years' experience as a long-haul driver and knew the rules and drivers log software. She wasn't paid for any of this work as she wasn't looking for a job in the wake of her mother's death. In January 2016, a friend of the Krushels was driving for JPP and suff ered a medi- cal emergency while on a trip to Toronto. Krushel agreed to fl y to Toronto to fi nish his trip as a favour, and so she began temporary employment with JPP on Jan. 14. She deliv- ered the load to Alberta and took the truck to Surrey on Jan. 29. She was paid $4,004. e friend didn't recover from his illness and died in March 2016. Krushel agreed to work for JPP full-time until a replacement was found. She didn't really want to drive and after each trip asked the company if a replacement had been hired. ere was no written employment contract and JPP understood that Krushel was essentially working for her husband's corporation, to whom her cheques were made out. In June 2016, Krushel's husband suff ered a heart attack and didn't return to work for JPP. Krushel was on a trip at the time, and when she completed it on July 2 in Surrey, she turned her truck over to another driver, removed her personal items, and "went home to retire." JPP decided Krushel owed it all of her fi nal paycheque to pay for the advance it had given her husband's corporation back in October 2014. No one informed Krushel and the company simply withheld the paycheque. e company also felt Krushel should have given it notice of resignation. After several unsuccessful attempts to speak to management at JPP, Krushel contacted the labour program of Employment and Social Development Canada, fi ling a claim of unpaid wages. After completing each assignment, she asked if a replacement had been found.

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