S1: Right to Disconnect Laws in Ontario, Australia, and British Columbia
GB: We hear a lot about the ‘right to disconnect’. Are there laws in Canada that govern an employer’s ability to contact employees outside of business hours?
DB: Ontario has introduced a ‘Right to Disconnect’ law. It requires employers who have 25 or more employees to have a policy regarding employees’ ability to disconnect after hours.1
GB: How has that been going so far?
DB: It was introduced with much fanfare, but we haven’t seen much come of it as yet. It simply says that you need a policy. An employer can meet its obligation by going online, downloading a policy and then putting it on an appropriate notice board at the workplace. The commentary so far is that this new requirement doesn’t have much teeth. That being said it is too early to know whether this has changed employer/employee behaviours about communications outside of regular working hours.
GB: Do you expect any major court cases on the matter to arise in the near future?
DB: If there were disputes, they’d likely be dealt with at the human resources level and not through the courts. I wouldn’t expect a case of that nature to make its way to a superior court.
GB: Are there similar laws in other countries? If so, what do they tell us about feasibility?
DB: Australia recently introduced a more substantive piece of legislation. It’s nationally based, and it doesn’t just require a policy, but actually entrenches certain employee rights. An employee can make themselves unavailable for contact outside of work hours and be protected from consequence. It was only implemented in August 2024, so it’s too early to tell what will come of it.
GB: Are there nuances to that particular piece of legislation, or is it applied across the board?
DB: The contact outside of working hours has to be ‘reasonable’ and I think that’s where the rub is going to be. For example if you’re working nine to five as a clerk, support staff, or in an administrative type role, it’s probably not reasonable for you to have to answer an email at 9PM. If, on the other hand, you’re in tech support, or a team leader at crunch time, you’re compensated specifically for your availability outside of business hours, so it would be more reasonable for you to have to respond outside of regular business house.
GB: Is it tough to enforce a sweeping piece of legislation like this?
DB: It’s a bit of a balancing act when such legislation is introduced at a national level, because it could result in thousands of claims being introduced to a system that may already be overloaded. How are you going to deal with it? I think other jurisdictions will be waiting to see whether the Australian model overwhelms their Fair Work Commission.
GB: Has the Government of Canada proposed anything similar?
DB: It looks like the federal government is proposing an amendment to the Canada Labour Code, which is the federal employer legislation. This would pertain to the federal public service, and industries such as banks, telecommunications, airlines, and the postal service, but the majority of businesses in Canada are not federally regulated.
GB: Do you expect that similar laws will be put in place here in British Columbia?
DB: There’s a lot of talk around mental health and burnout in the workplace, so it wouldn’t be shocking to see such legislation in BC, but I don’t see such legislation being introduced in British Columbia anytime soon.
GB: So, if I’m an employer who enjoys bugging my employees at 830PM, there’s nothing imminent that will prevent me from doing so, other than the fact that I could become an unpopular employer?
DB: Exactly. You’ve got the labour market to deal with, but I don’t think there will be strong right to disconnect legislation in BC, at least in the immediate future.
S2: Who is an Employee? Should Companies Feel Comfortable with Their Termination and Severance Contracts?
GB: There was recently a case in BC that involved a claim for severance pay, which hinged on whether someone was a full-time employee or an elect-to-work employee.2 Sometimes companies find that they’re not as well protected as they thought they were. Is this a contentious issue?
DB: It’s definitely a contentious issue. Each province, in its employment standards legislation, will have a general definition of who is an employee. It’s not based on whether someone works full time or part time hours.
GB: So, what is it based on? The employer, in this case, argued that the employee was an elect-to-work employee. What does that mean?
DB: An elect-to-work employee is someone who can choose to say yes or no to a shift without consequence. If the employer is a restaurant, for example, and they call you to offer a shift, can you say yes or no without losing your employment status? Someone like that may be exempt from certain protections, such as severance protections, because of the nature of their connection to the workplace. It’s not a common category, but it’s probably more frequent in the service industries.
GB: What advice do you give to employers with regards to contracts?
DB: As counsel to employers, we recommend that all of their contracts contain language dealing with termination of employment. What that language is will very much depend on circumstances. It could state that employment may be terminated by providing only the minimum requirements of the Employment Standards legislation. Or it could create a formula that defines what the employee gets based on lengthof service. It can’t go below the minimum standard, although it can certainly go above. The reason you do this is because it creates certainty at the end of the relationship, with regards to rights and entitlements.
GB: Despite attempts by employers to safeguard themselves, it seems to often become contentious. Why is that?
DB: If it gets contentious, it’s often because an employment contract has a clause that says the employer can terminate employment on a without cause basis by providing the employee with notice that is significantly less than what the common law will grant the employee (but still at least the minimum statutory amount). The employee will want the common law standard, and will therefore try to get out from underneath the language of the contract. They’ll argue that it wasn’t properly explained, or that they didn’t sign it, for example.
These disputes almost always turn on whether the contract is well drafted. Ontario takes a very strict approach to interpreting those clauses, often striking them down. BC hasn’t adopted the Ontario level of strictness yet, instead taking a more rational approach to interpretation.
GB: Do you have any rules of thumb that employers should be aware of?
DB: Put the contract to the employee before they start working. Give them time to get legal advice or at least review the contract, and have them sign it before they start working. Keep the language as simple as possible. If your intention is to restrict the employee’s rights on termination to the minimum requirements of employment standards, then say exactly that. Draw their attention to it and have them specifically agree to it.
S3: Will the Work Week Remain at 5 Days?
GB: Germany made headlines earlier this year for implementing a pilot project where 45 companies embraced a four day work week. Greece, meanwhile, has made it easier for some companies to implement a six day work week. What’s going on? Will we see any movement in Canada?
DB: I don’t see any momentum in Canada to change from a five day work week, at least not at the legislative level. I think the market has addressed the need for people to work more flexible hours, but I haven’t heard anything about a legislative push by the provinces or federally to mandate anything other than a five day work week.
If it were to come, and I don’t think it will, I think it would first be in the public sector. I can’t see the province or federal government pushing a four day work week onto the private sector. I think it would be a very unpopular thing to do.
GB: It may prove popular with the populace.
DB: But probably less so with the businesses that pay the taxes and drive the revenues.
S4 Bonus Round: Backgrounds, Golf, and Injury Disclosure
GB: I’ve got a few questions left that were the result of a brainstorming session. Can I give you a few quick ones?
DB: Let’s do it!
GB: Is there an official procedure to verify whether an individual was terminated for cause from their previous employment?
DB: There is no official procedure. The only thing I could think of would be to do a reference check, which you can often take with a grain of salt. There’s no database or formal approach to do that. There is an ability to search public court records to see if there’s been a lawsuit between your potential employee and a former employer, but that is probably of limited utility.
GB: This one is a bit bizarre, but if a company has a preference against candidates who, for example, own a boat or engage in golf, is there a way to approach this within legal or ethical boundaries?
DB: There are laws in BC and in all provinces that prohibit discrimination based on protected characteristics, such as age, sex, nationality, race, religion, and so on. If you create arbitrary rules about candidates, you run the risk of offending these prohibitions on discrimination, either intentionally or unintentionally. We would discourage employers from having these rules, unless they’re particularly necessary, in which case they should have them vetted by legal counsel or experienced human resource professionals.
GB: Last question: what can an employer do if a candidate does not disclose a previous injury that may impact their ability to perform their employment duties?
DB: If an employer is aware that an employee cannot perform some or all of the functions of their job, for medical reasons, then an employer is entitled to ask questions and obtain medical information from that employee in order to understand what that employee’s limitations are and whether they can be accommodated in the role, for example, by changing job duties, offering supports or assistance.
GB: What if I hire somebody to do a role and I have no idea that there’s been an injury in the past that then recurs, preventing them from doing the role? Do employees have an obligation to disclose these injuries?
DB: If it relates directly to the performance of the role, and if asked by the employer in the appropriate circumstances, then a candidate must be honest. If they are dishonest this may be a discipline or termination issue. But generally there’s no blanket obligation on a candidate to disclose pre-existing injuries or illnesses.
GB: I assume there’s some kind of language pertaining to the extent to which employees must be accommodated.
DB: Accommodating to the point of undue hardship. If you apply for a job as a landscaper and it turns out you’ve got a bad back and you can’t push a mower or lift a shovel, but can only do paperwork, it may be undue hardship for the employer to try to accommodate you. The role you can do is vastly different from the role you were hired for. That’s an extreme example. More often an employer can accommodate an employee by making fairly basic changes – e.g., more frequent breaks, supportive furniture, adjusting work hours, etc. These are just some examples. The best way to approach this as an employer is to base your decisions on medical advice and not assumptions about an employee’s capabilities.
Cited Sources
1 Direct communication with Danny Bernstein
2 Canada, HR Law. “B.C. Court of Appeal Upholds Termination Clause for Former Harbour Air Seaplanes Executive: HR Law Canada.” HR Law Canada | Practical news and information for human resources (HR) professionals, employment lawyers and business leaders, July 8, 2024. https://hrlawcanada.com/2024/07/b-c-court-of-appeal-upholds-termination-clause-for-former-harbour-air-seaplanes-executive/.
