Bill C-44 coming into force

The Governor General in Council has announced that the sweeping changes to the Canada Labour Code (the “CLC”), which affects federally regulated employees will come into force on December 3, 2017.  The coming into force completes the amendments that were announced in Bill C-44, the Budget Implementation Act, 2017, No. 1, after it received Royal Assent on June 22, 2017.  The changes were discussed in a previous legal update; however, a number of the more noteworthy changes are worth highlighting below.

Along with amendments to the Employment Insurance Act, Bill C-44 increased the unpaid parental leave of absence entitlement to keep in lockstep with the expanded time period for which parents may spread their Employment Insurance payments.  Under the new entitlements for federally regulated employees, parents will be able to take an aggregate amount of maternity and parental leave of up to 78 weeks in respect of the birth or adoption of a child.  In addition, further amendments to the CLC which incorporate a number of definitions from the Employment Insurance Act related to leaves of absence to care for a critically ill child or family member with a serious medical condition will be more widely available.  The category of those who are eligible to take a leave of absence to care for a critically ill child will be expanded to include family members, rather than limiting the leave of absence for only those who are a parent.

The amendments to the CLC will also provide the Canada Industrial Relations Board with greater authority.  The Board will now have the power to appoint an external adjudicator to rule on matters relating to occupational health and safety, hours of work, wages, vacations and holidays, and the new provisions of administrative monetary penalties.  These external adjudicators will be endowed with all the powers, duties and functions of the Board in respect of any matter they have been appointed.  The amendments also remove the use of Appeals Officers and provide that appeals from decisions of the Minister under Part II of the CLC will be referred to the Board.  The Board will also become the appropriate forum to hear unjust dismissal complaints, rather than an adjudicator as it was under the previous regime.

Inspectors will also have an expanded authority under the new amendments.  For instance, if an inspector forms the opinion that an employer is contravening, or has contravened, a provision under Part III, the inspector can issue a compliance order in writing, requiring the employer to terminate the contravention within a time frame specified by the inspector.  Employers would also be required to comply with any specific steps and time frame provided by the inspector to ensure that the contravention does not continue to occur.

Finally, employees will now be able to make a complaint under Part III of the CLC in writing to the Board if they believe that their employer has taken any of the following reprisals against them:

  • dismissing, suspending, laying off, or demoting the employee, imposing a financial or other penalty on the employee, or otherwise taking any disciplinary action against the employee, because the employee:
    • has made a complaint under Part III, other than a complaint under section 240;
    • has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee or provided any other assistance to the Minister or to an inspector in the exercise or performance of the Minister’s or the inspector’s powers, duties and functions under Part III;
    • has testified or is about to testify in a proceeding taken or an inquiry held under Part III; or
    • has exercised, or sought to exercise, any right conferred on the employee by Part III of the CLC.
  • taking into account the fact that the employee has taken any of the actions referred to in the above point in any decision with respect to the promotion or training of the employee;
  • threatening to take any of reprisals referred to in the above two points; or
  • taking action against the employee in contravention of section 208, 209.3, 238, 239, 239.1 or 247.96 of the CLC.

It is important to remember that there are many significant changes for federally regulated workplaces that are being brought into force and that the above points represent only a portion of these changes.  Should you have any questions, you are encouraged to review previous publications discussing this topic, or feel free to contact your regular lawyer at Norton Rose Fulbright Canada LLP.

French employment code reform: Focus on economic dismissals

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our third article on the amendments relating to economic dismissals.

The main aspects of the Reform regarding redundancies are as follows.

1. Limitation of the scope of analysis of the economic grounds

French case law used to closely monitor what constituted a fair reason for dismissal, particularly in cases of dismissal for economic reasons.

The Reform redefines the perimeter in which economic grounds for dismissal are to be assessed:

  • if a company does not belong to a group: economic grounds will be analyzed at company level (unchanged);
  • if a company does belong to a group: economic grounds will be analyzed at the level of the group companies located in France and operating in the same sector of business as the company targeted by the redundancies.

This constitutes a major change, as in the past, the economic difficulties / threats to competitiveness were assessed at the total group level, with the courts focusing on the results of all companies of the group, worldwide, operating in the same sector of business as the company targeted by the dismissals.

2. Limitation of the redeployment obligation

The Reform limits the obligation to seek redeployment positions as follows:

  • if a company does not belong to a group: to the whole company (unchanged);
  • if a company belongs to a national group: redeployment positions are to be sought in all companies of the group – as defined by French commercial code, provided that their organization, activities or location allow the employees to be redeployed in such companies (unchanged);
  • if a company belongs to an international group: redeployment positions shall be sought in companies located in France only (while in the past, the employing entity was obligated to seek reclassification positions in the whole group, even outside France, if requested by the employee).

In addition, the Reform no longer requires the redeployment offers to be personalized. Redeployment offers must still be in writing and specific. However, they can be either addressed to employees individually or posted by all means such as a list of positions on the intranet.

Aside from the provisions related to the posting of job offers (which must be supplemented by decree), all of the above provisions are applicable to all economic dismissal procedures initiated since 24th September 2017.

Where should an employment dispute be litigated when an employer’s business and an employee’s residence are located in different jurisdictions?

Where an employer hires an employee who resides in a different jurisdiction, the jurisdiction in which an employment dispute is litigated depends largely on where the employer carries on business.

In Koutros v. Persico USA, 2017 ONSC 3001, the employer, Persico USA Inc. (“Persico”) terminated the employment of Savvas Koutros, who was a General Manager of its Michigan, U.S. facility. Mr. Koutros resided in Windsor, Ontario and commuted to Michigan for work. Mr. Koutros filed a wrongful dismissal action in Ontario. Persico brought a motion to dismiss the claim on the basis that Michigan was the appropriate jurisdiction.

The test to determine whether an Ontario court ought to hear a case is two-fold:

  1. Is there a real and substantial connection between Ontario and the action such that the court has jurisdiction to hear the matter?
  2. If the court has jurisdiction, should it exercise its discretion not to hear the matter because there is a more convenient forum than Ontario?

In determining whether there is a real and substantial connection, an Ontario court may assume jurisdiction over the dispute if the employer carries on business in Ontario.

In this case, the Court held that there was no real and substantial connection to Ontario because Persico did not carry on business in Ontario.  Specifically, the Court found that:

  1. The employment contract contained an “employment at will” provision, which is a U.S. employment concept.
  2. The contract was signed at the Michigan facility.
  3. Koutros was paid in U.S. funds, with U.S. deductions
  4. Koutros received U.S. equipment including a U.S. company credit card and a U.S. cell phone.

The Court placed little weight on where Mr. Koutros was when he learned about his dismissal or the fact that he often worked at home. Neither are indicators that Persico carried on business in Ontario. Similarly, the Court held that Mr. Koutros’ visits of Ontario plants was not evidence that Persico had ever carried on business in Ontario. None of the visits resulted into the entering of a single joint venture agreement.

Given that the Court found that there was no real and substantial connection between Ontario and the action, it was not necessary for the Court to determine whether Ontario or Michigan was the most convenient forum for the litigation.

The Court’s ruling is a favourable decision for employers who do not carry on business in Ontario, but are forced to defend an action commenced in Ontario by a former employee. To minimize the risk that an Ontario court will assume jurisdiction over a matter, employers carrying on business outside of Ontario should take care not to take any steps which can be interpreted that it is carrying on a business in Ontario. This includes ensuring that the terms of the employment contract comply with the employer’s home jurisdiction. It is also recommended that the contract specifies the law of that jurisdiction (as opposed to Ontario) as the governing law.

It is also worth noting that in this case, Persico did not attorn to the jurisdiction of Ontario by filing a statement of defence. Where an employer believes that Ontario does not have jurisdiction to hear the dispute, it must bring a motion for dismissal before delivering a statement of defence.

Written in collaboration with Joseph Palmieri, articling student.

Refresh your feed: Updated Guidance on Social Media Background Checks

Social media is ubiquitous.  Over 20 million Canadians have a social medial account. It is a major source of information about our friends and the world around us.  It is also an important vehicle for recruiting and background information.

Employers will often have good reason to formally check an applicant’s social media profile in the hiring process.  Many will also do so informally.  Recognizing these realities, the BC Information and Privacy Commissioner has provided some updated guidance.  The guidance is good advice as well for employers operating in provinces that do not have private sector privacy legislation as various common law principles and human rights law may implicate similar issues.

The BC Privacy Commissioner recognizes social media background checks for what they are: a way to screen and monitor current and prospective employees, volunteers, and candidates.  Given that employers are going to use this tool, they should consider:

  • Whether they have consent to collect information from social media, or if appropriate notice has been provided. While the information may be posted publicly by an employee, the organization should not assume consent to use it for hiring purposes.  Employers may be able to use social media content about that individual’s employment consent if it is for reasonable purposes relating to recruiting, establishing, managing, or terminating the employment relationship.
  • Consider the risks of inadvertent collection of third-party personal information and over collection of information. Organizations should not collect more information than is reasonably necessary.  Often social media accounts include information about family, friends and others.  Additional collection is a potential liability.  Irrelevant information can potentially pollute the hiring process.  Information about a protected ground under human rights laws may increase the risk of an allegation of discrimination.  One way to mitigate against this is to use a recruiter screened from the hiring process to filter out irrelevant information or information about third parties.
  • Information may be inaccurate. Don’t guess about accounts and profiles.  Other factors can compromise the accuracy of social media, including mislabelled photographs and out-of-date information.

Employers engaging in social media background checks should have a documented process which demonstrates that these issues have been considered and addressed.  The process should contemplate the purposes for collection and use, the means and nature of consent involved, ways to mitigate potential intrusiveness or over-collection such as screens, limits on the types of information to be collected and used, appropriate security over the information and retention of the information.  Personal information used in the process should be retained for at least one year, however there may be other good legal reasons to retain it longer, such as limitation periods.

While legal proceedings arising from social media checks are not common, failing to follow the guidance raises the risks of a complaint to the Privacy Commissioner, human rights complaint or civil suit.

French employment code reform: Focus on dismissal procedure and indemnity

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in managing labour relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulations provided by the Reform, we have chosen to focus in our second article on the new regulations regarding changes to dismissal procedures, and to the calculation of dismissal indemnities.

We will detail in later articles the other main changes introduced by the Reform and notably changes affecting more particularly economic dismissals.

1. Changes to the dismissal procedure

These aspects of the Reform aim at facilitating the employer’s obligation to give grounds for a dismissal and are governed by Ordinance n°2017-1387.

The key points of the Reform are as follows:

  • Employers may use pro forma dismissal letters. The content of these letters has not been published yet but a decree should specify their content by January 1, 2018 at the latest.
  • Additional explanations on the termination may be provided or requested after the notification of the dismissal letter. In this respect, a decree is also expected by January 1, 2018 at the latest to clarify the conditions in which additional explanations may be provided or requested. It has however been made clear that the additional explanations shall not be used to provide an additional ground for dismissal, but only to complete the explanations provided in the initial dismissal letter.
  • The lack of adequate motives for a dismissal is now considered to be a procedural irregularity. In the event where the employee does not request additional information from the employer on his/her termination, the lack of motive does not deprive the dismissal from a real and serious ground. If the employer has not provided proper motives for the dismissal, he is exposed to damages for procedural irregularity amounting to a maximum of 1 month of salary.

2. New calculation method for dismissal indemnities

These provisions have been introduced by Decree n°2017-1398 dated September 25, 2017 and by articles 39 and 40 of Ordinance n°2017-1387. They are already applicable.

  • Minimum length of service. The minimum length of service required to benefit from a dismissal indemnity has been lowered from one year to 8 months. This seniority is appreciated on the date the dismissal letter is sent.
  • Amount of the dismissal indemnity. The amount of the dismissal indemnity has been increased as follows:
    • up to 10 years of seniority : 1/4 of the monthly salary per year of accrued seniority;
    • more than 10 years of seniority: 1/3 of the monthly salary per year of accrued seniority above 10 years (unchanged).

When the past comes knocking: when is a job candidate under a duty to disclose essential information?

An employee’s failure to disclose essential information regarding their employment history during a job interview may not always constitute a dismissible offence.

In Fipaza v Eskom Holdings Limited & Others (2010) 31 ILJ 2903, the Labour court set aside an arbitration award that held that an employee’s failure to volunteer information to her prospective employer was an act of fraudulent non-disclosure, and found her dismissal to be substantively unfair.

Fipaza was previously dismissed by the employer for alleged misconduct.  Some 18 months later, she applied for another post within the same parastatal and during the selection process, failed to disclose her previous dismissal.

The employer was of the view that Fipaza had a duty to disclose the reason why it had previously dismissed her and that she had failed to comply with that duty.  The employer subsequently dismissed Fipaza for this non-disclosure.

Fipaza challenged the fairness of her subsequent dismissal on the basis that she had assumed that her initial dismissal was common knowledge between the parties and that when the offer of employment was made to her, it was made despite the employer’s knowledge of how her previous employment ended.

The court relied on the principle  that there is no general duty on a contracting party to tell the other party anything that is within their knowledge that may be material and that where conduct takes the form of an omission, such conduct is prima facie lawful.

However, in Galesitoe v Commission for Conciliation, Mediation and Arbitration (2017) 7 BLLR 690 (LC) Galesitoe failed to disclose that he was a party to an ongoing litigious dispute involving his former employer that happened to be a potential client of the prospective employer.

The employer argued that it was brought to the attention of Galesitoe during his interview that his previous employer was a potential business target and that Galesitoe’s relationship with his previous employer would prove to be advantageous.  Galesitoe was appointed but was subsequently dismissed for misrepresenting his ability to attend to his employment obligations given the ongoing litigation between himself and his previous employer.

Galesitoe argued that the litigation with his previous employer was in the public domain and that he therefore did not have to disclose it during his interview.

The Labour Court agreed with the arbitrator’s reasoning that Galesitoe’s relationship with his previous employer was a material consideration for the prospective employer and that the employer was under no obligation to investigate what litigation a job applicant is engaged in except when the employee’s personnel records reflect that information.  The review application was accordingly dismissed.

Prospective employers need to be alive to the distinction that exists between an employee committing an act of dishonesty by failing to disclose certain information during the interview process and the failure to disclose information when they were not specifically required to divulge the information.  Employers can avoid this potential pitfall by asking for all the relevant information which they consider to be material to the job applicant’s potential appointment.

This article was written by Peal MathonsiCandidate Attorney, Norton Rose Fulbright South Africa Inc

Ontario Government Conducting Mining Industry Inspection Blitz

From October 2, 2017 to November 30, 2017, Ontario’s Ministry of Labour (“MOL”) will be conducting workplace inspection blitzes in mines and mining plants.

In recognition of the fact that October is Global Ergonomics Month, these blitzes will focus on workplace measures relating to musculoskeletal disorders (“MSDs”). However, inspectors will also be assessing the risk of slips, trips and/or falls in the workplace.

MSDs are injuries to one’s muscles, tendons, nerves or spinal discs that result from repetitive work, forceful exertions and prolonged periods of awkward or sustained posture. They are the most common cause of lost time at work in the mining sector.

As part of the blitzes, MOL inspectors will be:

  • Examining MSD hazards arising from manual material handling tasks and use of equipment that causes hand-arm vibration;
  • Checking that employers have completed risk assessments in respect of MSD hazards;
  • Reviewing joint health and safety committee minutes to see if MSD hazards have been addressed;
  • Ensuring that workers have been given adequate information regarding workplace MSD hazards;
  • Looking at workplace measures aimed at preventing slips, trips and falls.

In anticipation of the blitzes, mining industry employers should make sure that they have taken the steps outlined above. In addition, employers should review their accident experience in relation to MSDs and ensure that measures have been implemented to minimize MSD hazards in the workplace.

For more information, please refer to the following resources:

2017 – 2018 Mining Sector Inspection Blitzes

MOL Musculoskeletal Disorders Resource

Preventing Musculoskeletal Disorders (MSDs) in Mines

Preventing Slips, Trips and Falls in the Workplace

Written in collaboration with Samuel Keen, articling student.

French employment code reform: Focus on homeworking

French President Emmanuel Macron has signed five ordinances making important changes to several aspects of the French employment code. The ordinances, which were immediately published in the French Official Journal on September 23rd, 2017, are aimed in particular at providing employers more flexibility and predictability in labour-management relations.

Several provisions of this ambitious reform (the “Reform”) – numbering 159 pages and providing for 36 measures – are already in force.

Due to the significant amount of amendments to French employment regulation provided by the Reform, we have chosen to focus in our first article on the new regulations regarding homeworking. We will detail in later articles other main changes introduced by the Reform.

Ordinance n°2017-1386 defines homeworking as “any type of working organization in which missions which could also be performed on the premises of the employer are carried out by an employee outside the premises, on a voluntary basis by using information and communication technologies”.

Under the new Ordinance, homeworking is no longer required to be effected on a regular basis. In other words, as of September 24th 2017, employees may homework from time to time without any condition of having to do so at a predetermined frequency. Homeworking on an irregular basis must nevertheless be formalized in writing before occurring (e.g. exchange of email)

In the event that employees perform homework on a regular basis, the homeworking terms and conditions must be set out in a collective agreement entered into at company level. If no agreement is obtained, the employer can implement a homeworking policy, but only after consultation with the works council and the health and safety committee.

Such collective agreement/policy must provide in particular for :

  • the conditions of homeworking implementation and of return to a “usual” performance of the employment agreement (i.e. without homeworking);
  • conditions under which the employee agrees on homeworking implementation;
  • modalities of working time monitoring and workload regulation;
  • determination of the time slots during with the employer can usually contact the homeworker.

In addition, the ordinance provides that costs directly resulting from the homeworking implementation (e.g. electronic set up) shall no longer be reimbursed by the employer to the employee. However the underlying collective agreement/policy may provide for the conditions of indemnification for the costs directly triggered by homeworking.

The ordinance has also confirmed several principles previously provided under the French employment code. In particular, employers who have recourse to homeworking must take into account that homeworkers benefit equally from any rights granted to other employees, for example regarding employee representation and continuous training. Finally the ordinance implements a new presumption of working accident in the event that homeworkers suffer from an accident which occurs at their usual place of work and during the usual working period.

Employment Tribunal Fees – Refund Scheme

The government announced the first stage of its employment tribunal fees refund scheme on 20 October 2017.

As set out in our previous post  the Supreme Court in the UK handed down its judgement on 26 July 2017, holding that the introduction of fees in the Employment tribunals was unlawful.  As a result of that decision the Government must now seek to repay claimants who have paid fees.

The first stage of the phased implementation scheme means that up to around 1,000 people will be contacted individually and given the chance to complete applications. The opening phase of the refund scheme will last for around 4 weeks and the full reimbursement scheme will then open up.  The Government is also working with trade unions in relation to large multiple claims.

As well as being refunded their original fee, successful applicants to the scheme will also be paid interest of 0.5%, calculated from the date of the original payment up until the refund date.

Further details of the scheme, including details of how it can be accessed, will be made available when the scheme is rolled out fully. However, the Government has indicated that those who have paid Employment Tribunals fees, but have not been invited to take part in the initial stage, can pre-register an interest in applying when the full scheme is rolled out. We await full details of the scheme to see whether this pre-registration includes respondents who reimbursed fees to a claimant following a decision in the employment tribunal claim, or whether it is limited to claimants who will have to apply on the respondent’s behalf.

It is estimated that the cost of the tribunal fees refund, including interest, is approximately £33 million.


Paid leave granted to an Italian university employee for pet care

An employee of an Italian university in Rome has successfully obtained a two-day paid leave of absence from work to care for his pet dog, which had undergone surgery and required special assistance for an additional day to recover. The Italian animal rights association, LAV, advised the employee on submitting his successful request to the university.

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