McLennan Ross Update for Friday

By McLennan Ross Labour & Employment Team

 

What we are seeing

• Premier Ford from Ontario announced that despite the recent increase in COVID-19 cases, he is focused on moving to Stage 2 of Ontario's reopening strategy, which will result in the opening of more workplaces (such as some service industries and additional office and retail workplaces), public spaces and will allow for some larger public gatherings. 
• Ontario's top criteria for further easing its semi-lockdown is a consistent decline over a two to four-week period in the daily number of new cases. Cases have not declined consistently in three weeks since the implementation of Stage 1 of Ontario's strategy.
• Ontario's health minister is less confident and has stated the public health officials want to delay moving to Stage 2 until there is a steady reduction in the number of daily new cases.
• The City of Toronto is actively encouraging the city's other major downtown employers and post-secondary institutions to follow its lead and continue to support employees, where possible, to work from home until September at the earliest. This is in part to keep pressure off of the Toronto transit system. Once large employers start to have employees return to their offices, there is an agreement that the return will be phased in gradually with staggered start times, where possible, to help maintain physical distancing.

What we are hearing

• As we have discussed previously, we anticipate pressure from the Courts for parties to litigation to settle minor issues between themselves and use non-traditional methods to try to resolve the underlying dispute without taxing the Court's limited ability to hear in person contested applications and trials. 
• On June 4, 2020, the Court formally announced that it would be scheduling and hearing non-binding judicial dispute resolutions (JDRs) in June, July, and August. The Court has stated that it will only schedule JDRs in actions where both parties are represented by legal counsel and all agree to proceed via WebEx video and audio. As either an incentive or a warning, the Court has also indicated that there may be limited availability for JDRs in the Fall of 2020, which suggest that the Court will be using its resources to schedule trials which have been forced to be adjourned since March, 2020. 
• Although we are confident that the Court will apply the same legal principles and standards of proof in contested applications, we also believe that the Court will likely inquire with counsel what steps were taken by them to resolve issues in light of the Court's announcements and warnings. We are not suggesting that any party should accept an improvident settlement, but having evidence of good faith efforts to resolve issues may be beneficial.

What we are saying

• Employers are justifiably concerned about labour costs once they are permitted to more fully reopen during Stage 2 of Alberta's relaunch strategy. It is unclear how quickly customers will return to their old habits and forecasting the appropriate staffing levels will be challenging.
• One solution is to hire casual, on-call employees who only work when needed. Two issues which have been asked about are (a) the ability of an employer to adjust casual employees' hours based on business need and what limitations there are on those adjustments, and (b) what is an employer's notice obligation to casual employees if the employer decide to terminate the employment relationship. As with most such issues, the key to protect the employer is a properly drafted employment agreement, which likely need be nothing more than a 1 to 2 page offer letter.
• An employer can hire an employee to work variable hours depending on need. The employer must still comply with the sections of the Employment Standards Code which regulates hours worked.
• Section 17(1) of the Code has historically required an employer to notify employees of their start and end time by posting a notice or some other reasonable method. Section 17(2) requires an employee to provide notice of changes to shift schedules. Prior to the temporary changes to the Code necessitated by COVID-19, an employer had to provide at least 24 hours' written notice of changes to shift times. The temporary changes to the Code, which are set to expire in mid-August, allowed an employer to change shifts schedules on less than 24 hours' notice if notice was provided as soon as reasonably possible in the circumstances. 
• For on-call workers, as long as the employee can elect to work or not to work for a temporary period, shifts do not need to be posted in advance. However, once an employee is called into work, the employee must be paid for a minimum of three hours.
• For terminating casual employees, the offer letter should contract out of requiring common law notice of termination and should state that the employee will only receive his or her entitlement under the Code. For an employee who has been employed for less than three months, or who has the option to work or not to work for a temporary period, no notice is required. For all other employees, if they are employed for longer than three months but less than two years, only one week notice or pay in lieu of notice would be required.
• Experienced employment counsel should be consulted to properly advise an employer on its hours of work requirements and to ensure the offer letter properly limits the employer's liability when terminating excess staff.