“We have the statutory rules that the various legislators have enacted and we have the common law which is what the courts believe is appropriate,” he explains. “These two sources of law are inconsistent on this point.”
Interpreting the law
“The message to all employers in Canada is that if you have it in your mind to have a temporary lay-off – whatever it’s for – be mindful of the fact that you might be able to do it under the statutory rules but a court could still potentially rule otherwise.”
If that happens, employers could be forced to pay notice which would open them up to significant financial risk.
It’s a system Law heavily stresses he doesn’t agree with.
“It’s impossible for employers to prepare, that’s the problem with it,” he complains. “That’s why we believe the courts are wrong, respectively, so we’re arguing that they should be interpreting the common law in a fashion consistent with the statute.”
While legally there are ways to navigate asking employees to take time off over the Christmas period, Law suggests there might be an advantage to simply giving workers the additional time off.
“It’s very popular to create these opportunities for time off over the December holidays,” Law told HRM.
“Frankly it’s the most exhausting and least productive time of the year,” he added. “I’d suggest that, unless organizations are under some sort of financial strain, they should consider giving employees the time off as a bonus or good will.”
The small gesture, Law says, will likely amount to less than one per cent of an employee’s annual salary but could do wonders for engagement without seriously damaging productivity.
“It’s a very small incremental increase for days where – and this is the key – in many, many industries, except for retail, it’s an absolute trough of despond,” says Law.
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