Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com with Stuart Rudner Ask an Expert RUDNER LAW MARKHAM, ONT. Canadian HR Reporter, a Thomson Reuters business 2018 2 |April 11, 2018 Time elapsed between request and accommodation Question: If an employee requests accommodation in the form of modified duties, how long should it take to investigate and implement before it becomes too long? Can the employer wait if it knows another employee in a suitable position will be retiring soon? Answer: It is critical that employers have a procedure in place to respond to requests for accommodation, regardless of the na- ture of the request. It is not possible to specify a period of time that is reasonable to assess the request, as it will depend on the circumstances, including the infor- mation provided by the employee and the employee's willingness to co-operate in the process. Accommodation must be based on a dia- logue between the employee and the em- ployer. It is not sufficient for an employee to request accommodation and then refuse to participate in the accommodation pro- cess or provide additional information. Privacy laws do not mean that an employee does not have to provide any information. However, the employer cannot require ex- traneous information, such as the specific diagnosis of the medical condition. e emphasis should be on the limitations upon the employee's ability to carry out her du- ties, and not on the disability itself. Once the employee has provided suf- ficiently detailed information on her need for accommodation, the employer must engage in a good faith analysis to assess whether accommodation is required and, if so, whether it is possible. e duty to ac- commodate is to the point of undue hard- ship, which is substantial. If an employer seeks to assert that accommodation is not possible without undue hardship, it will need to have clear evidence of this. With respect to the second aspect of the question, the employer cannot simply delay for the purpose of delay. If accommodation is not possible before the other employee leaves, it will need to be upfront about that. It is conceivable that an employer could say that accommodating immediately would cause undue hardship, but that accom- modation would be feasible once a posi- tion opens up. e employer would have to demonstrate this, however, with cogent evidence. Reducing an employee's salary Question: Are there circumstances where a full-time employee's salary can be legally decreased? Answer: Generally speaking, employers do not have the right to unilaterally change an employee's salary or other terms of her em- ployment. It is important for employers to remember that the employment relation- ship is based upon a legal contract, regard- less of whether that contract is written or verbal. Just as you would not "advise" your landlord that you have decided to reduce your rent payments, you should not sim- ply advise your employee that you have cut their salary. Any unilateral and substantial change to a fundamental aspect of the employment relationship will constitute a constructive dismissal. Compensation is undoubtedly a fundamental element of the employment re- lationship, so the only real issue is whether the proposed salary reduction is "substan- tial." ere are no absolute rules in this re- gard, but generally speaking, any decrease of more than 10 per cent is likely to be offside. Lesser decreases may be, depending on the circumstances. Of course, if the employee voluntarily consents, then the change is not unilateral and therefore not a constructive dismissal. Stuart Rudner is the founder of Rud- ner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Canada published by Carswell, a omson Reuters business. He can be reached at stuart@ rudnerlaw.com or (416) 864-8500. WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, benefits during the notice period, and Ontario's new employment law changes. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. If accommodation isn't possible before another employee leaves, the employer will have to be upfront about it and demonstrate with evidence. The only real issue is whether the proposed salary reduction is 'substantial.' Any decrease of more than 10% is likely to be offside

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