What should employer do if employee refuses to answer call to jury duty, if anything?
Question: If an employee is called to jury duty but doesn’t want to go, does the employer have to do anything to ensure there isn’t any liability on its part and make it clear it’s the employee’s choice not to go?
Answer: Courts across Canada recognize jury service as a public duty owed by each citizen. Each province has its own legislation regarding jury duty and most are quite similar. Ordinarily, a person must be resident in the province or territory in which she is summoned, must be a Canadian citizen, and must have reached the age of majority in order to be qualified to serve as a juror. In each province and territory there are persons excluded from jury service — some common examples are lawyers, justices of the peace, and persons unable to understand the language in which the trial is to be conducted. For employers, this requires an awareness of the law surrounding employees being summoned and called to jury duty.
Juror summons are sent to randomly selected names of qualified persons, who are required to respond within a reasonable time of the summons being received. Persons who have been summoned to serve as a juror and wish to seek relief from jury service can normally apply for relief from jury service before the opening of the court for which the person is summoned they may be excused under certain circumstances. Otherwise, persons required at court for jury duty are usually required to attend until discharged by the presiding judge. Of those summoned for jury duty, only some persons are randomly selected and called to serve on the jury, and only these persons are sworn in for service.
Juror summons can be costly for both the employer and employee. Jurors are minimally compensated for being summoned to attend jury duty (as little as $15 per day) or for being sworn to serve as a juror (as little as $25 per day). Furthermore, collective agreements and employment contracts often provide that employers must maintain a continuing salary (or for providing the difference between the employee’s salary and the jury duty compensation), even though employees are not working during these time periods.
In Newfoundland and Labrador, employers are required by law to pay employees continued wages during their jury service. In certain cases, if employees’ jury service would cause serious hardship, inconvenience or loss to them, others, or the general public, their application for relief may be granted.
Under provincial legislation, it is an offence for a person summoned as a juror who, without reasonable excuse, fails to obey the summons or fails to answer when called by the local registrar. Such a person is liable on summary conviction to fines, imprisonment or both.
The provisions dealing with employer duties are slightly different across the provinces. In Saskatchewan, it is an offence for an employer to dismiss a person from employment by reason only of that person being summoned for jury service or being required to serve on a jury. Such a dismissed employee can be reinstated and or compensated under The Labour Standards Act, as long as the employee brings a claim within two years of the alleged offence. Although the wording of the provision in Saskatchewan is slightly different, other provincial statutes have been interpreted as similar to the Saskatchewan Jury Act in requiring employers to grant employees a leave of absence, with or without pay, and to reinstate the employee to her position upon the employee’s return. Ontario, Yukon, and Prince Edward Island also have similarly worded provisions.
Some provincial statues also include a prohibition and fines for employers or their agents who threaten to cause or cause actual loss of positions from employment because of an employee’s response to the summons — but there is no such provision in some provinces, such as Saskatchewan.
Thus, other than the liabilities set out above, an employer does not have any legal obligation to compel the employee to attend jury duty. It is the employee who is individually liable. Generally, an employer’s obligations with respect to jury duty are not to dismiss an employee summoned for jury duty, not to make or threaten to make changes to the employee’s employment because of the summons, usually provide a leave of absence to the employee, and to provide the employee with a salary during this time period if required by provincial legislation, a collective agreement or an employment contract. An employer would also be well advised to keep records of such accommodation.
