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Armed Forces Reservists to Receive Job Protection
Mon, 2007-11-26 11:20 — Robert Smithson
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The federal government will be introducing legislation protecting the jobs of armed forces reservists while they are absent on training and active duty. The legislation, announced recently by federal labour minister Jean-Pierre Blackburn, would apply to armed forces reservists employed by the federal government. It would also apply to private sector employers in the federal jurisdiction (chartered banks, railways, airlines, interprovincial trucking, and a few other selected industries).
The concept of the planned legislation is that, when the reservists return from active duty, their employment would have been preserved for them. In addition, the legislation will include measures protecting pensions and benefits of the reservists and their dependents.
There are approximately 30,000 part-time and full-time reservists with the armed forces at any given time. Their military duties and training obligations can require them to be absent from home, and work, for extended periods of time.
The planned legislation will not apply to employees falling under the provincial jurisdiction (which comprise roughly 90% of the workforce). The only province which has enacted similar legislation, applicable to employees falling under provincial jurisdiction, is Prince Edward Island.
However, assuming the federal legislation receives broad, cross-party support in the House of Commons then similar provisions will likely appear in the various provincial employment standards statutes. Employers, both federal and provincial, should prepare themselves for the likelihood that another category of employees will have their employment protected during leaves of absence.
In B.C., such provisions would reside alongside the existing job protections relating to a range of different types of leaves. Part 6 of the B.C. Employment Standards Act defines a variety of unpaid leaves available to employees. Employees may take leave for pregnancy and parental reasons, for jury duty, for family responsibility purposes, and for bereavement.
Employers must comply with employees’ requests for these statutory absences. The leaves are available regardless of how long the employee has been employed. The employer has, however, no obligation to pay the employee during the absence.
The employer must not, because of the employee having taken a statutory leave, either terminate the employment or change any terms of the employment. Terms of employment may be altered only with the employee’s written consent.
As soon as the leave ends the employer must place the employee back in her previous position (or in a comparable one). If it happens that the employer’s operations are temporarily suspended when the leave expires, it must comply with its obligations as soon as its operations resume.
An employer is not, however, required to return an employee to her job (or a comparable one) when legitimate organizational changes make that impossible. If a dispute occurs about the reason for a change to the employee’s position or his terms of employment, the onus is on the employer to prove the changes would have taken place in any event.
If an employer returns the employee to a so-called comparable job, the Employment Standards Branch may assess whether the new position truly is comparable. Employers who violate the leave provisions in Part 6 are subject to a range of sanctions, including escalating fines.
In hindsight, it strikes me as a little odd that it has taken this long for job protection for our armed forces reservists to make an appearance. After all, these individuals are charged with the highest of duties in protection of our nation and in the advancement of democratic ideals around the globe. That seems to me to be at least as important a societal task as attending for jury duty.
Nonetheless, the business community will perhaps be less than enthused about the addition of job protections for armed forces reservists. Facing the challenges of preserving jobs for absent employees every day as they do, employers know how difficult a task that can be. Adding another category of protected leaves will surely make that task even tougher.
Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, log on to http://www.pushormitchell.com/.
