Employers must accommodate safety, not anxiety, and employees cannot use fear and apprehension as a reason to refuse work
Author of the article:
Jul 24, 2020 • • 5 minute read
Every month, for more years than I am prepared to confess, I have been editor-in-chief of the Dismissal and Employment Law Digest, covering all new employment law cases from across the country.
This month, a few cases stood out as relevant to emerging issues in the pandemic:
1. Right to refuse to work
When Air Canada employees, Francisco Delgado and Meng Liang encountered an unpleasant odour on an aircraft, they refused to work further, despite being told that the smell was due to oil in the air system and that it was safe. A Health and Safety Officer ruled that the work was indeed safe and that the employees had to continue working. That decision was appealed by their union.
The Federal Court of Canada ruled that a finding of dangerous work could not be based upon mere speculation or hypothesis but, to warrant a work refusal, it must be sufficiently demonstrated that employees will likely suffer adverse health effects due to air contaminants causing the unpleasant odour.
In short, the law is clear that to refuse work during COVID-19, an employee must show an actual likelihood of danger. As I have noted in earlier columns, employers must accommodate safety, not anxiety, and employees cannot use fear and apprehension as a reason to refuse work. If they do so, they risk dismissal for abandonment, and the accordant loss of the Canada Emergency Response Benefit and Employment Insurance.
2. Temporary change in duties is not constructive dismissal
When Cheryl Costello was moved to a new office in Burnaby, B.C., following the acquisition of her company and consequent reorganization, she found that she had little work to do and claimed constructive dismissal. Her employer ITB Marine Group Ltd. met with her.
When asked what she wished, she responded: “a settlement.” Her counsel then wrote and advised ITB that she would not be returning. ITB responded that her job functions remained and that, if she did not say otherwise by the close of that day, she would be deemed to have resigned.
The B.C. Supreme Court found that ITB was in a state of transformation following the sale of part of its operations and that, although her day-to-day activities were affected, particularly in the short-term while adjustments were made, she retained responsibilities commensurate with her prior role. Although she was initially moved into an environment which was objectively unsafe, when she complained, she was permitted to work from her home until that space was renovated. Justice Geoffrey Gomery found that ITB had the right to treat her counsel’s letter as her resignation.
As employees across Canada are being recalled to work, employers are adjusting and reintegrating their workspaces, processes and needs. As a result, many employees are not being recalled to the same position or set of functions as before.
Many of employees’ former functions are not required during the interim period of reopening. With companies making adjustments on a temporary basis while reopening their operations, courts will have little sympathy with employees who claim, ‘it’s not my job function’. It will be otherwise, if the work is inherently humiliating or if the employee can demonstrate bad faith in their placement.
If an employee is recalled to a demoted position on a permanent basis, that, of course, is also a constructive dismissal.
3. Terminating employment before the term’s end, or not recalling to seasonal employment is a dismissal
Shelley Payne worked for the Kimberley Academy as a hockey coach under a fixed-term employment contract that was terminated months before its end. The court found that she was entitled to be paid until the end of the contract and was not limited to the lesser period of notice/severance that she might have been awarded if there had not been a contract.
Article content continued
Many employees have had seasonal employment interrupted by COVID-19. In some cases, they are not being offered those jobs and, in others, they are being offered reduced terms. Other employees have had full time employment offers rescinded because of COVID-19. Generally, all such employees have valid legal cases.
For employees who were fired before they started, we have had cases in our courts where employees, whose job offers were rescinded, have been awarded as much as six months pay, without even working a day. For those who are on contracts which were terminated prematurely, they can sue for the balance.
Employees who have a reasonable expectation of being recalled to seasonal employment, based on years of working in that job, are entitled to sue for the reason that they would normally have worked. The only exception is for employees whose jobs are ordered closed by the government. But even they can sue for the remaining period once their jobs become legal again.
If a year ago, you were told that an employee was told to stay home without pay, take a pay cut or reduction of hours or had their contract cancelled, everyone would have understood that they had a case. Employees mistakenly believe that the pandemic has uprooted the law. The law has not changed.
And now on to questions I received recently:
Q: As I’m 70 years old, I was asked to use my accumulated vacation during the COVID-19 lockdown. Now that I’m ready to go back to work I have been asked to take additional emergency leave of absence. I would have to apply for EI. What are my options, if any, after 33 years of continuous employment?
A: The government benefits you may or may not be able to apply for have absolutely nothing to do with your employer’s obligations. If you have now been laid off, it’s a constructive dismissal allowing you to sue for wrongful dismissal, which will be considerable in your case.
Q: I am on maternity leave for 18 months and was receiving a maternity top-up supplementary benefit of 100 per cent. The employer just cut me off of the benefit mid-way as they can no longer to afford to pay due to COVID-19. Do I have recourse?
A: If an employer reduces any benefit without notice, the employee can sue for that benefit or its value for a period of reasonable notice.
Q: Can I be constructively dismissed from a seasonal job? I have worked all but two of the last 22 years at the same company.
A: If you have an expectation from the practice of being recalled to a seasonal job and are not, for reasons of COVID-19 or otherwise, you can sue for the wages and benefits you would have earned during the seasonal employment for one season.
Got a question about employment law during COVID-19? Write to me at email@example.com.
Howard Levitt is senior partner ofLevitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.