Canadian Employment Law Today

October 11, 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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with Meghan McCreary Ask an Expert MACPHERSON LESLIE & TYERMAN REGINA Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2017 2 | October 11, 2017 Have a question for our experts? Email Employee missing team-building event because of workload Question: If an employer organizes a team-building event for a particular department during normal business hours but one or two of the employees are unable to attend due to the amount of work they have, could the employer have any liability regarding discrimination or overtime? Answer: Human rights legislation protects employees from discrimination in their em- ployment on the basis of prescribed grounds under the legislation, which are generally called "prohibited grounds" of discrimina- tion. In most provinces, those grounds in- clude: religion, creed, marital status, fam- ily status, sex, sexual orientation, disability, age, colour, ancestry, nationality, place of origin, race, receipt of public assistance and gender identity. As such, unless a particu- lar employee is being assigned extra work so as to prevent him from attending the team building event because of a prohibited ground of discrimination (for example, the employee is assigned extra work because of his race or age), then the assignment of work which prevents attendance at a team-build- ing event will not be discriminatory. ere is no ground of discrimination relating to the amount of a work a person takes on in his job capacity. In other words, an employee can't claim protection from discrimina- tion under human rights legislation on the grounds that he has too much work. With respect to a claim for overtime, overtime is only accrued when an employ- ee works above the maximum legislated hours of work proscribed by employment standards legislation. In most provinces in Canada, the maximum hours of work before overtime is triggered is 40 hours per week or eight to 10 hours per day (depending on the province). If an employee does not attend the team building event and instead works on another project during normal business hours, and does not work in excess of regu- lar daily or weekly hours, no overtime will be triggered. However, if an employee works more than the maximum number of daily or weekly hours — for example, attends the team-building and then works late to fi n- ish his work – overtime can become pay- able. To avoid overtime liability, employers should ensure that employees are expressly advised that they may not work overtime without express written permission to do so, as overtime is otherwise generally pay- able in circumstances when an employee works overtime of his own volition without checking with the employer fi rst. Terminating probationary employee Question: Can an employer truly terminate a probationary employee with no notice or pay in lieu? Does it make a difference whether it's early in the probationary period or when it's almost complete? Answer: An employer is permitted to ter- minate a probationary employee within the statutory probationary period, without notice of termination or pay in lieu, for any reason that is not discriminatory. Most em- ployment standards legislation across Can- ada dictates that an employee may be ter- minated without just cause in the fi rst three months of employment, without notice or pay in lieu of notice. In a unionized environment, the standard to terminate a probationary employee is "suitability" rather than just cause. In other words, the employer must be able to dem- onstrate that the probationary employee is "unsuitable" and that the unsuitability is not based on any discriminatory reason. Unsuit- ability is a low threshold, but the grounds which demonstrate unsuitability must be reasonable, and the employer must demon- strate that the employee was given a fair op- portunity to try to meet the requirements of the job that he was hired to do. Technically it does not matter whether the termination of an employee occurs early in the probationary period or just prior to the end of a probationary period. However, where a suitability standard is being applied, it is easier for the employer to demonstrate that the probationary employee has been given a fair opportunity to succeed in the job if he has had more time in the job to dem- onstrate profi ciency (or lack of profi ciency). It is common, however, for employers to impose probationary periods that are lon- ger than the three months allowed under employment standards legislation. In such cases, employers should be careful to stipu- late in writing the standard upon which the employee will be assessed during the proba- tionary period (for example, a "suitability" standard rather than a "just cause" standard) and the notice or pay in lieu to which an employee will be entitled if he is dismissed during the extended probationary period. Any probationary period in an employment contract that is longer than three months will trigger statutory notice of termination or pay in lieu. erefore, an employer can stipulate that an employee will have a six- month probationary period, and that he will be assessed on a suitability standard during that period, but if the employee is dismissed after more than three months of employ- ment, he will still be entitled to at least statu- tory notice of termination upon dismissal. e employer can limit any further common law liability for termination if an employee is dismissed during an extended probation- ary period by stipulating that only statutory notice will be payable if the employee is dis- missed during the extended probation (for example, after three months but before six months of service). Arguably, an employer does not have to provide common law notice within a proba- tionary period that is longer than the statuto- ry period if an extended probationary period is a term of the employment contract. To rely on this right, an employer should set out, in an off er letter or employment contract, the purpose of the probationary period and the employee's entitlement if terminated within the extended contractual probationary pe- riod. Doing so will demonstrate that an ex- tended probationary period was a term of employment agreed to by the parties which limited common law liability for termination during the probationary period. Meghan McCreary is a partner practicing la- bour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347-8463 or mmcreary@ CORRECTION In the "Ask an Expert" column appearing in the July 19 issue, it was stated that every province in Canada requires written notice of termination under the governing legislation. However, Manitoba does not require notice in writing, unless a group of 50 or more employees is being terminated at the same time.

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