[Abhijit Pai]

in reply to: Hiring Temporary Residents #97109

1. Obligation to assist temporary residents with PR or work permit extensions

Employers are not legally obligated to assist employees with their permanent resident (PR) applications or work permit extensions if the employee already has an open work permit.

An open work permit allows the employee to work for any employer in Canada, so the onus is on the worker to maintain their immigration status.

That said, some immigration programs (e.g., certain provincial nominee programs) require employer involvement (letters of support, job offers, etc.). In those cases, assistance is voluntary, but declining may affect retention.

Unless your employment contract, a collective agreement, or company policy explicitly promises support, you are not legally required to provide it.

2. Past practice of assisting with SINP applications

If you have previously assisted employees under the Saskatchewan Immigrant Nominee Program (SINP), that doesn’t create a permanent legal obligation to assist all future employees.

However, consistency matters: if you provide this support selectively, you must be careful not to base your decision on protected grounds (race, religion, nationality, etc.). Otherwise, a rejected employee could allege discrimination.

You can set a neutral business policy (e.g., “The company will support up to X SINP applications per year due to compliance fees”) as long as it is applied fairly and transparently.

3. Choosing Canadians/PRs over temporary residents in hiring

This is not discrimination under Canadian human rights law.

Human rights legislation prohibits discrimination based on protected grounds (race, sex, age, disability, religion, etc.), but immigration status is not a protected ground.

In fact, Canadian immigration and employment law explicitly allows (and in some contexts, encourages) employers to prefer hiring Canadian citizens and permanent residents over temporary foreign workers. Job postings often say: “Canadian citizens and permanent residents will be given priority.”

The key is that the decision must genuinely be about status (citizen/PR vs. temporary resident), not a proxy for national origin or ethnicity. For example:
• Permissible: “We are giving preference to Canadian citizens and permanent residents due to long-term workforce stability.”
• Risky: “We don’t hire foreign workers because they are from X country.”

In summary:

You’re not legally obligated to help open work permit holders with PR or extensions.

You can cap or stop PR support through SINP, provided the rule is applied fairly and not selectively in a way that disadvantages protected groups.

It’s lawful (and common) to give preference to Canadian citizens and PRs over temporary residents when hiring for permanent roles.

[Abhijit Pai]

in reply to: LRB: Mitigating Unfair Labour Practice Claims #97107

You’re right to be cautious—this is a legally sensitive moment. Here’s what you should know about the risks of rolling out the new piece rate now:

1. Risk of Unfair Labour Practice (ULP)

Any change to terms and conditions of employment (wages, rates, benefits, hours, etc.) at a location where a bargaining unit has been certified—even if bargaining hasn’t begun—can be seen by the Labour Relations Board (LRB) as an unfair labour practice if it looks like you’re trying to undermine the union’s position.

The test is less about your actual intent and more about how it appears. If the timing suggests the wage change is aimed at discouraging union activity or influencing workers at the Kelowna warehouse, that’s a problem.

2. Bona Fide Business Justification

You do have a legitimate business rationale: increasing output to meet project compensation terms. The fact that you can document that this plan predates certification helps.

However, even bona fide changes that look like inducements (e.g., sudden pay increases, bonuses, or improved rates coinciding with union organizing) are often challenged. The LRB may say: “You should have waited until collective bargaining.”

3. Spillover to Kelowna

If the union is eyeing Kelowna, rolling out the new rate across both sites could be characterized as an attempt to dissuade employees from organizing.

Even if you limit it to the certified location, the union could argue it was meant to influence the Kelowna crew indirectly.

4. Potential Consequences

A ULP complaint could result in:
• Orders to reverse the piece rate change.
• Monetary remedies (back pay, penalties).
• Most importantly, in certain jurisdictions, repeated ULPs during organizing can trigger the “remedial certification” or “automatic collective agreement” provisions—meaning the Board can impose a contract without negotiations, as you flagged.

5. Safer Paths Forward

Delay the rollout until you’ve at least opened bargaining. That way, you can table the new rate as a management proposal, supported by your documented business need.

If you absolutely must implement now, do so across the company (not just at unionized or potentially unionizing sites), tie it transparently to project performance targets, and communicate that it was long in the works. But even then, you’re exposed.

Seek labour counsel immediately. They can advise whether your jurisdiction’s LRB has a history of strict remedial certification orders in similar circumstances.

Bottom line:
You’re right; rolling this out tomorrow morning carries significant risk. Even if you can show emails proving this was planned earlier, the optics are poor. Given you already have one LRB claim, another could tip the scales toward imposed terms. The legally safer move is to pause and integrate this into bargaining.

[Abhijit Pai]

in reply to: Temporary layoffs #95699

When you’re facing a downturn in work-volume and want to “park” employees rather than terminate them outright, each province has its own rules about when a temporary lay-off is lawful, how long it can last, and what happens if you stretch it beyond the statutory maximum. Here’s a quick guide for BC, Ontario and Québec:

British Columbia
Statutory lay-off period
– You may temporarily lay an employee off up to 13 weeks in any 20-week period without it being deemed a termination www2.gov.bc.ca

Contract or consent requirement
– If you don’t have a written lay-off clause in the employment contract, and it’s not an industry-customary practice, you must obtain the employee’s express consent in writing. Otherwise the lay-off can be treated as a constructive dismissal and you’ll owe termination pay

Benefits
– During a lawful temporary lay-off the employment relationship remains “alive,” so you should continue any group-benefit contributions you would otherwise make (and employees continue to accrue statutory entitlements).

Beyond 13 weeks
– If you exceed 13 weeks in a 20-week window (without an approved variance), the Employment Standards Branch treats the lay-off as a termination and you’ll owe statutory termination pay (and, depending on length of service, severance pay)

Ontario
Statutory lay-off periods
– ESA allows up to 13 weeks in any 20-week period, or in very limited circumstances (e.g. you continue substantial payments or benefits, the employee remains EI-eligible, or recall rights persist) up to 35 weeks in a 52-week period

Contract or consent requirement
– Ontario courts have held that, even where the ESA permits a lay-off, you cannot unilaterally impose one unless the employment contract expressly allows it, or the employee consents, or it’s an established industry practice. If no contractual right or consent, employees can claim constructive dismissal and treat your lay-off as a termination

If the ESA limit is exceeded
– The lay-off is automatically deemed a termination, and you must pay ESA termination pay. In many cases employees will also pursue common-law severance (especially if they have lengthy service and the employer meets the size threshold).

Benefits
– To qualify for the extended 35-week period you must continue to pay benefits. Otherwise your lay-off still ends at 13 weeks.

Québec
Statutory lay-off period
– Under the Act respecting labour standards, a lay-off can last up to 6 consecutive months without becoming a dismissal

Notice and severance on over-6-month lay-off
– If you keep someone out longer than six months, the lay-off becomes a termination and you must give them the prescribed written notice or pay indemnities in lieu (i.e. “severance”) cnesst.gouv.qc.ca

Benefits
– Because the employment relationship remains in force during a lawful lay-off, you should maintain any group-insurance or pension contributions just as you would if they were working.

Under-6-month lay-off
– There is no severance or indemnity owing if you recall the employee within six months

Bottom line for your hourly workforce in BC, ON & QC
Check your contracts (or get written consent) before you impose any lay-off.

Stay within the province’s maximum (13/20 in BC; 13/20 or 35/52 in ON; 6 months in QC).

Maintain benefits during the suspension to preserve the employment relationship.

If you exceed those limits, the lay-off automatically “converts” to a termination, triggering ESA/CNESST notice and severance obligations.

So, yes—you can implement temporary lay-offs even if your contracts are silent, but only if you secure employee consent (or add a lay-off clause) and strictly observe each province’s time-limits. In Québec, you will not owe severance for any lay-off under six months, but you must maintain benefits and recall them by month six to avoid notice/indemnity requirements.

• This reply was modified 8 months ago by Abhijit Pai.
• This reply was modified 8 months ago by Abhijit Pai.

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