Canadian Employment Law Today

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2017 2 | September 13, 2017 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Employee's refusal to work for safety reasons Question: If an employee refuses to work on the basis it is dangerous causing delays and financial loss, but an official investigation determines there is no danger, can the employer take disciplinary action? Answer: Most employees are exposed to certain types of dangers or hazards that are specifi c to the type of job the employee per- forms. While health and safety legislation provides a statutory right to refuse unsafe work, the same legislation also qualifi es the threshold at which normal dangers or haz- ards associated with a job become unsafe. For example, in Alberta, an employee has the right to refuse to perform imminently dangerous work. "Imminent danger" is de- fi ned in the province's Occupational Health and Safety Act as "a danger that is not nor- mal for that occupation or one which some- one working that job would not normally accept." us, what is "dangerous work" is a relative determination according to the occupation or work being performed. Simi- larly, in New Brunswick, Manitoba, New- foundland and Labrador, Saskatchewan, and the Northwest Territories, the right to refuse unsafe work is limited to work that poses an "unusual danger" to an employee; and in British Columbia, work refusals are subject to the test of "undue hazard". Employees, in association with the right to refuse dangerous work, also have the right to refuse such work without the fear of reprisal from the employer. In fact, re- gardless of whether an investigation deter- mines there is no danger to the employee, occupational health and safety legislation has raised a presumption against the em- ployer for any reprisal including demotion, dismissal, suspension, deduction of wages or benefi ts, job transfers, change in hours of work, or reprimand. Since employees and employers often disagree about whether work is danger- ous, the employer will often view the refus- ing employee as insubordinate. However, if the worker is acting in compliance with the workplace health and safety legislation, such as good faith reporting of a safety concern, it is imperative that the employer not take any disciplinary action against the worker. Notably, a worker who reasonably be- lieves that she has been disciplined for rais- ing a safety concern may use the grievance procedure under the collective agreement, if any, or fi le a complaint before the appropri- ate federal or provincial occupational health and safety board or administrative body. If it is ultimately found that the complainant employee was acting in accordance with the statutorily proscribed occupational health and safety procedure, and was disciplined for raising a safety concern or refusing to accept dangerous work, then the employee may be entitled to reinstatement, cessation of the disciplinary action, payment of lost wages, and removal of any reprimand or other reference to the matter from the em- ployee's employment record. A work refusal, however, is improper where the employee's refusal to work is not based on legitimate health and safety con- cerns, and when the worker has not followed the proper procedures required in refusing to do unsafe work. An employee's refusal would also be improper if it is frivolous or the reasons amount to insubordination, as was the case in McGregor v. Brunswick Min- ing & Smelting Corp. For more information see: • McGregor v. Brunswick Mining & Smelting Corp., 1991 CarswellNB 399 (N.B. Q.B.). Misconduct during working notice Question: If a terminated employee agrees to a generous severance package with a short period of working notice but then causes major disruptions to the workplace during her last few days, can the employer revise the package in response to the misconduct? Answer: When an employer terminates an employee without cause, the employee is entitled to a period of working notice, or payment in lieu of notice, or a combination of working notice and payment in lieu of no- tice. Contrary to the belief of most employ- ers, working notice is not the alternative to pay in lieu. Employees are entitled to work- ing notice with pay in lieu as the alternative. e length of the notice period comes from a number of sources including: a valid termination clause in the employment con- tract; employment standards legislation; or common law. Generally, contractual or statutory notice periods only factor in the employee's length of employment when stipulating a notice period. For example, the Alberta Employment Standards Code states that an employee who has been em- ployed by an employer for more than two years but less than four years is entitled to two weeks' notice. Often employment con- tracts will adopt the notice periods defi ned under employment standards legislation. If the contract of employment is silent on the notice period, then an employer must give common law notice. ere are a vari- ety of factors to consider when determining an appropriate notice period including: the character of employment, the employee's length of service, age of the employee at the time of termination, and the availability of similar employment with regard to experi- ence, training, and qualifi cations. In other words, the conduct of the em- ployee during a working notice period does not aff ect her notice entitlement since the notice period is determined prior to the period of working notice. However, when an employee is given working notice, she is obligated to continue working until the end of the notice period (unless she choos- es to resign before the end date), and thus must sustain an adequate level of job per- formance during this time. Misconduct, however, during the period of working notice can provide grounds for discipline up to and including immediate dismissal: see Restauronics Services Ltd v. Forster. An employee terminated for cause during the working notice period due to a serious act of misconduct is not entitled to notice of dismissal or severance. Although working notice is likely the less expensive model for an employer, it may not be practical in many situations. An employ- er must consider the employee's spectrum of possible responses to being terminated. Some issues to consider when choosing to off er working notice are: seniority, the em- ployee's personality, motivation (will she be productive during the notice period), access to confi dential information, the potential to bring information to a competitor, the em- ployee's relationship with the company, and the risk of damage to the company. For more information see: • Bardal v. Globe & Mail Ltd (1960 Carswel- lOnt 144 (Ont. H.C.). • Restauronics Services Ltd. v. Forster, 2004 CarswellBC 472 (B.C. C.A.). Tim Mitchell practices management-side la- bour and employment law with Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrose- fulbright.com.

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