Canadian HR Reporter

CANADIAN HR REPORTER MARCH 2018 INSIGHT 27 Tim Mitchell TOUGHEST HR QUESTION Determining breaks in service How do we treat an employee who leaves but returns shortly thereafter? Question: If an employee leaves but returns within a very short time, does it matter whether she was originally terminated or she resigned in determining if she has an unbroken term of service? Answer: When an employee is terminated without cause, an employee is entitled to receive working notice or payment in lieu of notice. As a rule of thumb, the longer an employee has worked for the same employer, the more notice or pay in lieu thereof the employee is entitled to receive. When there is an absence or interruption in an employee's employment, an issue can arise as to whether to treat the en- tirety of the employment as one continuous period, or disregard any employment prior to the interruption. Statutorily, this issue is quite clear. Alberta's Employment Standards Code, for example, recognizes that for the purpose of determining the correct statutory termination notice, two periods of employment are to be con- sidered as one if 90 days or less elapsed between the two periods of employment. No distinction is made between whether the employee initially re- signed or was terminated. For example, in ompson Bros (Constr.) Ltd. v. Saar, an employee was laid off and returned to work nine months later. e fact that the employee was laid off had no bearing on the Al- berta decision. e umpire sim- ply applied the 90-day rule to the circumstances and confirmed that the two periods of employ- ment would not be considered as one. At common law, however, whether an employee resigned or was terminated may be a factor in determining whether the employ- ee was continuously employed. For example, the fact that an employee is terminated and re- ceived a severance package is a factor that breaks the term of service. As a matter of policy, such a practice prevents double recov- ery by ensuring that an employee does not receive a reasonable no- tice entitlement for the same pe- riod of time more than once. In Stant v. Elaho Logging Ltd., the B.C. employee was terminat- ed, received a $20,000 severance, and signed a release for future claims. He returned one year later and was terminated again following nine additional years of service. The period of employment prior to his fi rst termination was not taken into account in assess- ing the reasonable notice period for his second termination. In assessing whether a resigna- tion constitutes a break in em- ployment, considerable weight is put on the reason for the em- ployee's resignation. For example, if the employee resigned for family reasons, the courts are less likely to view this as an absence that breaks the term of service: See Brien v. Niagara Motors Ltd. In contrast, if the employee re- signed to work for a competitor, the absence will likely break the term of service, as in Gibara v. ABN Amro Bank Canada. Other factors are relevant to determining a break in service, such as the length of absence in relation to the length of overall service, whether the employer in- duced the employee to return, and whether the employee returned with recognition of her prior se- niority: See Balchin v. Die-Cast Marwest Ltd. In Graham v. Galaxie Signs Ltd., the employee had two breaks in service issues. e fi rst break was a six-month unapproved leave during which he worked for a competitor of the employer. The employee could not es- tablish that his return was pre- arranged or that, upon return, his past services were recognized. As such, the fi rst absence was deemed to break his term of service. The second absence was for two years. e British Columbia employer recruited the employee to come back, and the employee bargained for the recognition of his past service and retention of seniority. This included six per cent holiday pay, rather than four per cent, refl ecting a longer period of service. e court also accepted the ver- bal commitment of the employer, which, in inducing the employee to return, stated, "It will be like you never left." Because of this, the second absence did not break the term of service. For more information, see: • ompson Bros. (Constr.) Ltd. v. Saar, 2012 CarswellAlta 2359 (Alta. Ump. Under Emp. Stndrds. Code). • Stant v. Elaho Logging Ltd., 2017 CarswellBC 1105 (B.C. S.C.). • Brien v. Niagara Motors Ltd., 2009 CarswellOnt 7820 (Ont. C.A.). • Gibara v. ABN Amro Bank Canada, 2003 CarswellOnt 4026 (Ont. S.C.J.). • Balchin v. Die-Cast Marwest Ltd., 1987 CarswellMan 17 (Man. Q.B.). • Graham v. Galaxie Signs Ltd., 2010 CarswellBC 1061 (B.C. S.C.). Tim Mitchell practises management- side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright. com. AI still needs that human touch Every revolution comes with costs – what's important is how we adapt to change Recently, Tesla and SpaceX CEO Elon Musk has taken heat from other technology luminaries for doomsday predictions when it comes to unbridled artificial intelligence (AI). "AI is a fundamental, existential risk for human civilization," said Musk, before adding it will cause massive job disruption because robots "will be able to do every- thing better than us." Facebook CEO Mark Zuck- erberg called Musk "pretty ir- responsible" and pointed to AI benefi ts such as helping diagnose diseases and eliminating motor vehicle accidents and deaths in the future. Microsoft founder Bill Gates said robots off er great benefi ts in the near term, but agreed with Musk there is potential for alarm in the long term if AI develops a "super intelligence" beyond humans. On the dire side: Almost half of today's jobs are "potentially auto- matable" within two decades, ac- cording to Oxford University. Five million jobs worldwide will be eliminated before 2020, according to the World Econom- ic Forum. And robots and AI will kill 16 per cent of jobs and create only nine per cent more for a net loss of seven per cent of North America by 2025, according to Forrester Research. On the sunny side: A study of 140 years of census material fi nds technology has created more jobs than it destroyed since 1871, and there's been a sharp decline in the number of hard, dangerous and dull jobs because of technology, according to Deloitte. So, depending on whom you believe, AI over the next 20 years — or about the lifespan of a cat — is either a human job eliminator or a creator of new types of work that humans can excel at, while giving robots the mundane, low- value tasks. While I prefer to be optimistic, there is only one sure thing: An AI revolution has already begun and will pick up speed each year. AI is a part of our everyday lives — from making suggestions for dinner recipes to keeping an eye on our credit card spending patterns to reducing fraud in its simplest form. Every revolution comes with costs. Jobs will be eliminated and people will be displaced. What's important is how each of us handles and adapts to the change. No job or profession is robot- proof. e question is not which jobs will be most impacted, but how do we build on AI's benefi ts to enhance our livelihoods? Employees who succeed and thrive will be those who leverage their fundamental human traits such as empathy, trust, humour and relationship-building. Successful businesses have al- ways needed the human touch, and that's true even more so now. Take the example of more than a decade ago when handheld com- puting and communications de- vices were using a stylus to point and click. Then Apple CEO Steve Jobs famously told his engineers that humans already have the best possible stylus: eir fi ngers. e iPhone was born and the world changed. It's this type of human think- ing that AI will have difficulty replicating. It's also why I disagree with the dictum that liberal arts became ir- relevant in the digital age. e arts and humanities teach students to think widely and critically. "It's STEAM, no longer STEM," said Paul Barter, an author and lecturer on technology strategies at the Schulich School of Business at York University in Toronto. "You've got to add arts and hu- manities to science, technology, engineering and math." "We need both types: e sci- ence geeks and the artsies." A case can be made that those possessing critical thinking skills will be least impacted by AI be- cause robots operate on strict rules and algorithms. For example, many companies already use AI in the hiring pro- cess to fi nd candidates by using technologies to search databases. These sourcing methods use algorithms based on current staff . ey identify people who look a lot like current employees. Instead of finding people to complement current capabilities and move the company forward, AI instead builds a pre-defi ned culture of sameness that can't an- ticipate future needs. That's why human resource and talent acquisition profes- sionals will still be needed to make human choices to dis- courage sameness and fi nd new — and even disrupt — pools of qualifi ed candidates. AI can be incredibly useful, but if it's used without complement- ing human awareness, it can be detrimental. We need humans to think creatively and abstractly about problems to devise new and innovative strategies, test out diff erent approaches, and look to the future for upcoming challenges and opportunities. We need to be sure we aren't us- ing algorithms to replicate a past that does not meet the needs of the future. Angela Payne is the Toronto-based se- nior vice-president and general man- ager for Canada at Monster. For more information, visit www.monster.ca. Angela Payne GUEST COMMENTARY HR and talent acquisition professionals will still be needed to make human choices to discourage sameness and fi nd new pools of qualifi ed candidates. A worker's termination and severance package break the term of service.

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