Court Reminds Us AGAIN that IDEL Layoff = Dismissal :

In  Webb v. SDT North America, 2023 ONSC 7170 the Superior Court told us again that putting someone on IDEL ( Infectious Disease Emergency Leave ) is allowed under the ESA but not under the common law. Nor does silence about the layoff constitute acceptance.

Therefore a 55 year old Shipper Receiver with 13 years service got a 15 month notice period .

In calculating damages the Court did two things which I thought were odd .

1. The Court said that the Plaintiff was entitled to 6% of his gross salary as vacation pay.

Normally one does not receive vacation pay over the common law notice period unless it was the practice of the employer to add the vacation pay to each pay check. The reason for this is because if I am employed for 52 weeks at $52,000 per annum but am entitled to 3 weeks vacation, at the end of the year my T4 shows $52,000 but I only had to work 49 weeks. If however I am entitled to 12 months pay in lieu of notice I should end up with the same $52,000 not $52,00 plus 6% ( $3120 ).

2. The employee earned $3700 during the notice period which the Court deducted from the award. This would seem to go against the Court of Appeal case in Brake v PJ-M2R Restaurant where it was held that minor amounts like this do not count as mitigation income.

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Federal Court of Appeal Confirms that an Adjudicator under the Unjust Dismissal Section of the CLC can Award Substantial Indemnity Costs ;

In Amer v. Shaw Communications Canada Inc., 2023 FCA 237, Justice Gleason upheld the Adjudicator’s award of substantial indemnity costs even where there was no finding of circumstances where there was reprehensible, scandalous or outrageous conduct on the part of the employer.

The Court upheld the more modern view that to not award such costs to an innocent employee is to punish them for pursuing their legal rights .

This is what they said:

[100] In the case at bar, the appellant was of limited means, earning just under $40,000.00 per year when employed by the respondent. In addition, she was a single parent. Given the amount of damages awarded in the instant case, which were limited to out-of-pocket losses for a relatively short period and a modest amount of severance pay, it is entirely possible that the fees charged by the appellant’s counsel might have been close to or perhaps even exceeded the amount of damages awarded. Were this the case, the appellant would have been worse off for pursuing the complaint than she would have been had she not filed a complaint. Such a result would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code.

[101] On the other side of the ledger, the appellant was faced with a large respondent, with substantial resources and the ability to pay experienced labour counsel, who mounted a lengthy case over several days of hearing and through lengthy written submissions.

My Comments ;

This is an important win for dismissed employees who utilize the unjust provisions of the CLC. As managers are statutorily excluded from the unjust dismissal provisions, the average claimant is of modest means. In fact, many of these claimants are self represented, resulting in rough justice at best.

By making sure that winning claimants can afford lawyers, the quality of the adjudications would also rise.

Unlike the civil justice system where a losing plaintiff can face a substantial adverse costs award, under the CLC the Adjudicator cannot award costs against a losing claimant .

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Barry B. Fisher LL.B.

Court Upholds Leave of Absence as OK for Dealing with Anti Vaxer:

In Van Hee v Glenmore Inn Holdings Ltd., 2023 ABCJ 244 (CanLII) Justice Burt found that a policy requiring the Covid Vaccine for a restaurant server to be reasonable.

The Plaintiff ( who refused to get vaccinated ) was put on a leave of absence without pay until she either got vaccinated or until the Defendant lifted the vaccine requirement.

The Plaintiff claimed that she had been constructively dismissed. The Court found that she had resigned as soon as she claimed that she had been constructively dismissed.

This is what the Court said :

[68]           In sum, imposing the Policy, including an unpaid leave of absence as a consequence of the Plaintiff choosing not to be vaccinated, did not amount to constructive dismissal nor a breach of the Contract on the part of the Defendant. The evidence as a whole has established the Defendant acted reasonably, lawfully and with justification in enacting the Policy that allowed the Plaintiff to make a choice as to whether she would be vaccinated.

[79]           The law, applied to the facts of this case, supports the conclusion that the Policy was a reasonable, justified and lawful response by the Defendant to the extraordinary circumstances of the Pandemic in 2021. Placing the Plaintiff on unpaid leave balanced the Defendant’s business interests, statutory and contractual obligations, the rights of its employees to a safe work environment, and the safety concerns of its customers, while ensuring that individuals like the Plaintiff could refuse to get vaccinated without termination of employment and instead, choose an unpaid leave of absence.  

My Comments ;

Many cases have already upheld these mandatory vaccine policies.

What is interesting about this case is that it seems to endorse an unpaid LOA, but it may not uphold a termination for just cause.

The highlighted comment about balancing the two interests seems to suggest that had the Plaintiff been terminated instead of being put on a LOA that the outcome may have been different .

However, this begs the question as to how long does an employer have to wait to decide if the person on the LOA needs to be replaced ? It may well be easy to temporarily replace a server, like this Plaintiff, but what if the employee held  a critical position within the company, like the Comptroller? It would be near impossible for an employer to hire a temporary Comptroller that would be subject to termination on a days notice if the Comptroller on  LOA changed their mind and got vaccinated. What is the temporary replacement cost more per diem than the person on layoff? What if the refusing employee declared that they will NEVER get vaccinated ?

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