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LEGAL REPORT: LABOUR AND EMPLOYMENT lawyers can help turn their minds to due diligence, and help them ask the right questions. "You have to take a hard look at all the strategies," says Nowakowski. "It may be possible to stagger terminations so that you never have more than 50 leave in the four-week period. A lawyer needs a good grasp of the operational requirements so he or she can make the plan cost as little as possible." McPhail suggests employers can make use of Employment Insurance if they instigate a work-sharing program. "You could change a four-day week to a three- day week, reducing everyone's hours across the board, with the assistance of Employment Insurance to help augment people's pay. It's an option but you must know the limits to it so as to avoid the pitfalls of falling afoul of the rules." Another tool employers can use is layoffs, which are recognized by collective agreements. Under the Ontario ESA, employers retain recall rights for 13 weeks in a 20-consecutive-week period, or 35 weeks in a 52-week period. Nowakowski calls this a tough tool because once you go over 13 weeks, the ESA deems a termination to have occurred on the first day of the layoff. While a layoff is unpaid, termination brings pay in lieu of notice. Also, if layoffs are not part of the employment contract or the practice of the employer (i.e. an express or implied term), an unpaid layoff can be construed as a constructive dismissal. "Whether you use it depends on what is forecast in terms of business recovery," he says. "It has to be looked at carefully so some inadvertent result cannot occur." Salary freezes or cuts are another strategy but can be a problem depend- ing on the size of the reduction in wages and/or benefits. "If the reduction is large enough, it can trigger construc- tive dismissal by unilaterally altering a fundamental term of the contract," states Nowakowski. "One would think some workers might accept it to keep their job, but you never know what an employee's reaction will be. Getting the agreement of the employees to take a Ball&Alexander Barristers & Solicitors Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Text • Wrongful Dismissal Employment Class Actions Labour Relations Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Employment Standards Disability 82 Scollard Street, Toronto, Canada, M5R 1G2 Phone: (416) 921-7997 Fax: (416) 921-3662 web: www.staceyball.com www.kenalexander.ca 44 M AY 2009 www. C ANADIAN Law ye rmag.com all_CL_May_09.indd 1 4/14/09 3:43:35 PM BALL_Canadian Employment Law (CL 1-4sq).indd 1 1/19/09 2:54:34 PM Stacey Reginald Ball One of Canada's foremost employment authorities provides an examination of the facts you can count More than 5,500 cases cited! This one-stop reference provides a thorough survey of the law. It clearly analyzes current law and developing trends, suggests potential avenues of attack as well as identifies potential weaknesses in the law. The subject-matter is wide-ranging and addresses issues such as: • wrongful dismissal • fiduciary obligations • constitutional issues … and more ORDER your copy today Looseleaf & binders (2) • $297 Releases invoiced separately (3-4/yr) • P/C 0439030000 Vol. 1 ISBN 0-88804-218-3 • Vol. 2 ISBN 0-88804-362-7 canadalawbook.ca MERGING TRADITION WITH TECHNOLOGY For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd Prices subject to change without notice, to applicable taxes and shipping & handling. CL0109 reduction in their compensation pack- age is the best way if you can do it." If none of these strategies are available or effective, and the employer resorts to termination, Eric Harris, a partner at Harris and Co. LLP in Vancouver, says lawyers need to understand the motiva- tion and effect of the termination. "What we're experiencing at the moment is employees being terminated for many reasons. In most cases employers are responding to a business issue, but in some cases they are terminating people who have been ill a great deal or not performing well, using this opportu- nity to deal with those issues. In some cases it is not a typical termination and may engage human rights legislation and result in punitive damages." McPhail adds that some terminations may amount to early retirement. "In B.C., we have recently seen mandatory retirement removed, and employers may not be aware of the implications." Even more considerations are relevant when corporate staff are affected, either Canadian Employment Law Also available on CD-ROM or Internet!