Worker needed 12 months of employment to file unjust dismissal claim under Canada Labour Code, but 10 of 18 months spent at bank were assignment from temp agency
The Canada Labour Code allows federally regulated employees to make unjust dismissal claims, but only if they have 12 months of employment. A former Bank of Canada employee discovered that time providing services with a temp agency doesn’t count toward that time because it was the agency that employed her.
The Bank of Canada has an agreement with Excel Human Resources — a human resources recruitment and staffing company — in which the latter provides temporary workers to fill roles when needed. The bank tells Excel the details on the temporary work and the type of worker needed to perform it, and Excel then advertises and recruits job candidates to fill those needs. Excel interviews and screens candidates and when one is found to match the bank’s stated needs, it presents the candidate to the bank. If the bank determines the candidate is acceptable, Excel hires the worker and places her with the bank to perform the required job the bank needs.
In August 2016, Denise Ma applied for an internal position with Excel but was unsuccessful. Excel tried to place her in several assignments with various clients, but none made it into placements. In late November, Excel suggested Ma as a candidate for an administrative assistant position at the bank, so the bank arranged an interview with its representatives. The bank found Ma was qualified for the position and reached a temporary help assignment with Excel.
As with other Excel candidates, Ma consented to a written candidate pre-screening agreement that stated the goal was “employment” with Excel and a corresponding “assignment” to a client. The agreement stated that Ma was a candidate for employment with Excel.
Ma began providing services to the bank on Dec. 12, 2016. Excel and the bank formalized an agreement of engagement and release order confirming a “call up of services” under a professional services sourcing agreement between the two entities. The agreement of engagement included the terms and conditions of Ma’s temporary placement and the larger sourcing agreement guaranteed continuous services during the assignment — if Ma became unable to perform the services of the assignment to the bank, Excel would have to replace her.
At the same time, Excel implemented a work assignment and employment agreement that outlined Ma’s pay and Excel’s health and safety handbook. The bank paid Excel during Ma’s placement and Excel paid Ma’s wages. Excel required Ma to complete online accessibility training before starting and Ma completed timesheets through Excel’s online services.
Ma’s job duties included creating candidate files and doing credit checks. She worked in bank offices with a laptop, telephone and email address supplied by the bank. During the assignment, Excel occasionally checked with the bank to see if the bank was satisfied with Ma’s performance — which the bank was. Other than Ma submitting her timesheets, there was little contact between her and Excel during her placement.
Ma’s first placement ran for four months and was extended another month. The bank and Excel extended the placement two more times, eventually running it to Dec. 31, 2017. With each extension, the bank and Excel signed a fresh letter of engagement and Ma signed a fresh work assignment and employment agreement.
From temp to full-time
In October 2017, Ma successfully applied for a permanent administrative position at the bank with job duties similar to her assignment through Excel and with the same team, resources and manager. She informed Excel that she had found a permanent position — but didn’t reveal it was with the bank — and said she would be resigning effective Oct. 25.
On Oct. 26, Ma entered into an employment agreement with the bank running for one year until Oct.26, 2018 and continued her duties, this time paid directly by the bank. She had no further involvement with Excel once the company paid her final paycheque.
In December 2017, the manager under whom Ma had been working went on maternity leave and was replaced. Things didn’t go as well under the new manager and, on June 18, 2018, the bank terminated Ma’s employment, citing performance issues. The bank provided her with the minimum notice entitlements under the Canada Labour Code, as stipulated by the employment agreement.
Ma went back to Excel and was placed with other clients. However, she filed an unjust dismissal complaint under the code, which doesn’t allow dismissal without cause.
The bank argued that Ma couldn’t file an unjust dismissal complaint, as the code only allows employees who have “completed 12 consecutive months of continuous employment” prior to the termination to file such a complaint. Ma had only been its employee for less than eight months — since Oct. 26, 2017. Prior to that, Ma was an employee of Excel on a temporary work placement, said the bank.
Ma maintained that she had essentially been an employee of the bank since Dec. 12, 2016, performing the same work with the same team since then. Ma argued that the bank was trying to “have its cake and eat it, too” by benefitting from her work but taking on no responsibilities of an employer.
Temp agreements common
The adjudicator found that there was no reason to believe that the bank and Excel entered into an arrangement with the purpose of avoiding the unjust dismissal claim entitlement in the code. The two entities had “an arrangement to distribute the attributes of employment in a way that would make Excel the employer and the bank a client for all purposes” — an arrangement that was common in “tripartite” temporary help arrangements involving agencies that employed people to perform work for clients and were “a common, accepted and legitimate feature of the modern business world,” said the adjudicator.
The adjudicator noted that such tripartite arrangements put the burden of an employment relationship on the agency and allow the client to “eat cake” by receiving the benefits of the employment relationship and paying the agency for it, but such arrangements were not at odds with the objectives of the unjust dismissal remedy in the code.
The adjudicator also noted that such an arrangement can be abused or used to inappropriately mask situations where the client is the true employer, but such circumstances would have to be determined through examination of the “attributes of employment.”
In Ma’s situation, Excel was the employer during the temporary placement with the bank, the adjudicator said. Excel recruited Ma in a process that started months before she started working at the bank, including interviews, screening and online training. The bank didn’t follow any of its own recruitment processes and only reviewed Excel’s recommendation and interview of Ma for the purposes of the temporary placement. Ma was an employee of Excel — which tried to put her in other placements before the bank — before she was assigned to the bank, said the adjudicator.
In addition, the adjudicator pointed out that Ma signed agreements making it clear she was applying for employment with Excel, was given Excel policies and training and was paid by Excel. There was “no misapprehension that she was entering into a formal written employment agreement with Excel and not the bank,” said the adjudicator.
While Ma argued that Excel didn’t actively manage her performance and she had little contact with the company during her placement, the adjudicator found that the bank was satisfied with her performance and Excel had no reason to interfere — there was no need for performance management or discipline by either Excel or the bank. In fact, the sourcing agreement between them stipulated that the bank should contact Excel for any problems and Excel would follow up or replace Ma if necessary.
The adjudicator found that while the bank supervised Ma, assigned her day-to-day duties and partially integrated her into its operation, it was Excel that assigned her to perform duties at the bank for a fixed term as part of the work assignment and employment agreement — “that is what would be expected in a tripartite temporary help arrangement where an agency’s employee is parachuted into a client’s organization to temporarily perform clerical work.”
The adjudicator further found that Ma understood her employment situation when she accepted the permanent position with the bank. She provided Excel with notice of resignation and entered into an employment agreement with the bank in October 2017. At that time, her tenure as a bank employee began — meaning she had eight months of employment with the bank, not enough to entitle Ma to the right to file an unjust dismissal claim under the code.
“In and about the first 10 months [Ma] provided services, all three parties behaved in a way that was consistent with the expectation that termination obligations and rights were focussed on Excel,” the adjudicator said. “Changing that expectation now by recognizing the bank as [Ma’s] employer would unfairly impose obligations around respecting rights of dismissal in a way that none of the parties expected at the time the tripartite temporary help arrangement was entered into, was functioning and came to an end.”
For more information, see:
• Ma and Bank of Canada, Re, 2020 CarswellNat 65 (Can. Lab. Code Adj.).
