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| Sylvia Nicholles |
Those fortunate enough to have retained their jobs face growing concerns, in some industries, about their long-term prospects, as businesses struggle to cope with new restrictions. Many workers have been laid off with no recall in sight.
Many have been recalled but face layoffs again as public health officials respond to the ever-changing rates of infection. Recently in B.C., the province’s public health officer, Dr. Bonnie Henry, reordered nightclub venues closed (they had been closed from March 17, to the end of June) and reimposed previously relaxed restrictions on restaurants and bars, by reducing liquor service hours, banning dancing and limiting music volume to “conversational levels,” ostensibly to combat “speaking moistly.” Similar public health orders have been made across Canada.
Meanwhile, service workers, initially laid off and forced to collect CERB, have been recalled to work, now with new responsibilities to enforce social distancing, while working reduced hours for reduced pay.
All of this is terra incognita for employment lawyers. Much has been written for the employer-side bar on how to navigate these uncertain times. In this author’s observation, less has been written on employees’ rights in the context of COVID-19, and the impact of the pandemic on the reasonable notice of termination to which they are entitled.
Employees are wondering: can they refuse to come to work if they feel they will not be protected despite an employer’s best efforts? What happens if they refuse work? The answer in law is they have quit if they refuse work and an employer has met current occupational health and safety requirements. If a worker quits, they lose entitlement to Canadian emergency response benefit (CERB) and employment insurance (EI) benefits. If they come to work and claim it is unsafe, they are required to work in potentially harmful conditions while awaiting an occupational health and safety decision on whether the workplace presents a danger such that refusing to work is justified.
In B.C. where nightclub venues were allowed to open for a period, many workers faced this exact issue and had to work under what we now know were less than safe conditions. As COVID-19 cases rose, public health officials learned presymptomatic transmission of COVID-19 amongst young people is more common than previously thought. This begs the question if an employer cannot adequately protect their employees from exposure to COVID-19 and it is now difficult to find serving work elsewhere, what recourse do these workers have?
If an employee can successfully claim constructive dismissal due to unsafe working conditions or a fundamental change in their work as these workers are now expected to enforce public health orders and potential exposure to COVID-19, how does this affect their notice period and mitigation efforts?
The oft-cited Bardal factors discussed in Bardal v. Globe & Mail Ltd. [1960] O.J. No. 149 at para. 21 take into account the following when determining notice periods for employees dismissed without cause: a person’s length of service, the characteristics of their job, their age, and the availability of similar employment. All of these factors, strictly applied, work against most workers in the service industry as most do not work in one job for a long period of time, work in what are considered to be low-skilled positions, are usually young, and prior to COVID-19, it was presumed it would be easy for a service industry worker to find work.
The jurisprudence stemming from Bardal has tended toward longer notice periods for people in high-skilled positions on the assumption that finding similar work as an executive is more difficult than finding similar work as a server. This presumption has been challenged in law and in fact as incorrect as Bardal itself states the reasonableness of notice must be determined in reference to the circumstances in each case.
This was the line of reasoning applied in Byers v. Prince George (City), [1998] B.C.J. No. 1757 where a 55-year-old parking attendant with a grade seven education had her notice period of four months varied to eight months on the basis of low prospects of finding new employment. Similarly, in Bramble v. Medis Health and Pharmaceutical Services Inc. [1999] N.B.J. No. 307 (NBCA) Justice Ernest Drapeau argued employees in low-skilled positions have no easier a time finding re-employment than those in high-skilled positions. He went so far as to argue the courts should reject the proposition (at paras. 64-70). Byers was recently applied in Ram v. Michael Lacombe Group Inc. (c.o.b. Burger King and Burger King Canada Holdings Inc.) [2017] B.C.J. No. 246 where a Burger King employee with 24 years of service was awarded 12 months’ notice.
The court’s long-standing presumption in employment matters of protecting employees against the imbalance of power between themselves and their employer may gain new shrift when the effects of COVID-19 continue to disrupt how our workplaces operate.
The courts have yet to provide guidance on how they will deal with post COVID-19 terminations and notice periods. Given the new expectations placed on service industry employees and lowered prospects of finding work, longer notice periods could be awarded to service industry workers if they are considered wrongfully or constructively dismissed. Employers and employees alike are well-advised to consider legal counsel through these uncertain times.
Sylvia Nicholles is an associate with Chantler and Company LLP in Vancouver where she assists employees and employers to navigate human rights and employment law and civil litigation more generally. She can be reached at sylvianicholles@chantlerlaw.ca.
Photo credit / UNDERNEON STUDIO ISTOCKPHOTO.COM
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