Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $308 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. legaltaxcanada@tr.com Website: www.employmentlawtoday.com 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: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Erickson dismissed due to a discontinuance of his function? OR Was Erickson unjustly dismissed? IF YOU SAID Erickson was dismissed due to a discontinuance of his function and Onion Creek Cree Nation had a legitimate reason to terminate his employment, you're right. e adjudicator noted that the Can- ada Labour Code does not allow for with- out-cause dismissal, but employers can lay off employees for economic reasons and in good faith. ough Erickson was given du- ties in the fi re rescue and peacekeepers pro- gram, this was on an interim basis and only until a new manager was hired. His main job for which he was hired was to supervise the community safety offi cer program, which the band decided to discontinue due to a lack of funding. With the program discon- tinued, it made sense for Erickson to be the employee to be laid off , said the adjudicator. " ere was an economic justifi cation for the discontinuation of the community safety offi cer program and it was a bona fi de discontinuation of a function," said the ad- judicator. e adjudicator also found Onion Lake Cree Nation didn't need to consider Erick- son to fi ll the manager of the fi re rescue and peacekeepers program, because the new hire wasn't doing any of his duties from his regular position. e new hire was also an economic consideration because the posi- tion was part-time and at a lesser salary, said the adjudicator. "It is unfortunate that Mr. Erickson was unhappy by the less than thoughtful way his termination was carried out by his em- ployer, in a way he characterized as a lack of good faith," said the adjudicator. "However, this does not constitute evidence that con- tradicts Onion Lake Cree Nation's assertion that Mr. Erickson was only laid off because of a bona fi de discontinuance of a function." e adjudicator dismissed Erickson's complaint. For more information see: • Erickson and Onion Lake Cree Nation, Re, 2018 CarswellNat 1228 (Can. Lab. Code Adj.). Employee wants interim job after company cuts his regular job THIS INSTALMENT of You Make the Call features an employee who wasn't happy that he was laid off when his regular job was cut but someone else was hired for a job he was helping to do on an interim basis. Dale Erickson was hired by the Onion Lake Cree Nation in Saskatchewan on Aug. 20, 2015, on a contract basis, to be the super- visor of the band's new community safety of- fi cer program. e job entailed enforcing by- laws and customary traditional spiritual laws the band council passed, investigating bylaw complaints, and supervising the three work- ing community safety offi cers — who were recruited from the band's fi re rescue and peacekeepers program. e new commu- nity safety offi cer program wasn't funded by the government, so Erickson and other band employees had to look for other sources of funding for the program, such as fi nes that were imposed and the band's heritage trust. A little while later, the manager of the band's fi re rescue and peacekeepers pro- gram resigned, so Erickson and another per- son were appointed interim managers of this program until a permanent manager could be found. Onion Lake Cree Nation expected a gov- ernment grant to help fund the community safety offi cer program, but the in early 2017 the Saskatchewan government confi rmed that there was no grant money available for the program. Revenues from the heritage fund were down as well from a drop in oil prices, so the band decided it couldn't aff ord to maintain the program — by early 2017, the community safety offi cer program was operating at a defi cit of more than $160,000. Given the funding problems and the band's concerns of potential liability, it de- cided to discontinue the community offi cer safety program. It informed Erickson that his contract would not be extended and his last day of employment would be Jan. 24, 2017. e community safety offi cers under his supervision were transferred back to their previous positions in the band's fi re rescue and peacekeepers program. Shortly after Erickson's termination, a new employee was hired to be a part-time supervisor in the fi re rescue and peacekeep- ers program, which had a lower salary than what Erickson was making. Erickson fi led a complaint of unjust dis- missal, saying the hiring of a new employee after he was dismissed showed there wasn't a discontinuance of his function and Onion Lake Cree Nation didn't have a reason to ter- minate his employment under the Canada Labour Code.

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