Employment Law Issues (9:V): Difference between revisions
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There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving students should review the most current state of the law on this issue. | There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving students should review the most current state of the law on this issue. | ||
== The ESA and Covid-19 == | |||
=== 1. Covid-19 Related Leaves under the ESA === | |||
The Employment Standards Act has introduced several amendments related to Covid-19. They can be found at: | |||
https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96113_01#section52.121 | |||
Section 52.12 of the ESA allows eligible employees to take unpaid leave if an employee has contracted Covid-19 or has been exposed to it, until the employee is no longer suffering the circumstance which caused them to take the leave. No note from a medical practitioner is not to be provided for this leave. Additionally, those who are required to quarantine or self-isolate under health agency guidelines, who are directed by the employer not to work, who are required to care for a child as a result of school or daycare closure, or who are trapped outside of BC as a result of travel restrictions (among other reasons listed in the amendment) are provided protection under the amendment. If an employer dismisses an employer who is on an unpaid Covid-19 leave, there can be a claim of a breach of the Employment Standards Act (see ESA s. 52.12). See full section for further details. | |||
Section 52.121 of the ESA sets out the amount to be paid to employees taking paid leave due to Covid-19. The eligibility period for this section ends on December 31, 2021. See Section 52.121 for further details and possible updates. | |||
Section 52.123 of the ESA sets out that if vaccination for Covid-19 takes place on a workday the worker is able to take up to 3 hours paid leave the day of the vaccination. No note from a medical practitioner is necessary provided for this leave, however the employer is entitled to ask for proof of vaccine appointment. See full section for further details. | |||
=== 2. Covid-19 and Section 65 (1) (d) Impossible to Perform === | |||
Section 65 (1) (d) says that an employee is not entitled to ESA notice or severance if the employee is employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act. | |||
The Employment Standards Interpretation Guidelines have been updated several times, in relation to the criteria the Branch will consider in the analysis of whether Covid-19 created an employment contract that was impossible to perform due to an unforeseeable event. See further information at: | |||
https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/forms-resources/igm/esa-part-8-section-65 | |||
== Breach of contractual terms of employment == | == Breach of contractual terms of employment == | ||
