'The actions of the workers… didn't satisfy that objective test, they were forced out'
Eight temporary foreign workers didn’t quit their jobs when they tried to raise concerns about their working conditions with their employer, the Nova Scotia Labour Board has ruled.
“Adjudicators are going to recognize the power imbalance between employers and employees, and they’re even more cognizant of that imbalance when temporary foreign workers are involved, given that there may be a language barrier, an economic power difference, and the fact that these individuals traveled to our country based on the promise of particular work and pay,” says Megan Thompson, labour and employment lawyer at McInnes Cooper in Halifax.
Ocean Pride Fisheries operates a fish plant in Lower Wedgeport, NS. It employed several temporary foreign workers on a seasonal basis as labourers.
The foreign workers’ employment contracts stated that Ocean Pride wouldn’t recoup any costs incurred in recruiting or retaining them and the company would provide accommodation at a cost of $50 per week. In addition, the company agreed to provide transportation costs of the round-trip travel to the workers’ home country and health insurance at no cost to the workers.
Ocean Pride had additional rules that weren’t part of the employment contracts, including that each worker would receive an apron, a pair of gloves, a sharpener, and a knife. Knives would be replaced at a cost to the workers, while the rest would be replaced monthly with any additional replacements deducted from the workers’ pay.
The company also provided work boots at no cost. If they were left behind when the workers left, there would be no charge. If they took them, the cost would be deducted from their pay.
Work permit, immigration fees
Each year, Ocean Pride co-ordinated work permit and immigration fees on the workers’ behalf through an immigration assistance company, paying the company up front and recovering the costs through weekly deductions from the workers’ pay. The fees ranged from $500 to $1,250 per person.
In 2021, several foreign workers, including eight from Mexico, became unhappy with a number of workplace injuries and their living conditions. They also believed that a foreign worker had been unfairly fired.
On Sept. 10, they decided to speak with their manager about their dissatisfaction. They didn’t speak English very well, so they asked an employee who spoke better English to talk to the company driver on their behalf when the driver picked them up for work, who could relay the message that they weren’t going to work until after they had spoken to the manager. They then gathered in the living room of their staff accommodations.
The English-speaking employee asked the driver to “tell the office that we are all done” and “we don’t work for Ocean Pride anymore.” The employee also texted the manager and said they were going to “move today” and they needed their tickets to fly home to Mexico.
Language barrier
The manager didn’t initially reach out to the workers, but the driver returned to the accommodations and brought a phone with the manager on speaker. The manager asked when they were planning to leave the house and, when someone said “tomorrow,” the manager said “today.” The workers didn’t understand what was happening due to the language barrier, but the driver delivered eviction notices later that day stating that the tenancy termination date was Sept. 14.
The workers were confused as they expected to talk to the manager about their concerns. They met people through a church who provided them with temporary food and shelter. Ocean Pride didn’t pay for their return trip to Mexico, so some returned at their own expense and some applied for vulnerable worker open work permits because they were “experiencing abuse or at risk of abuse” in their employment.
The workers filed a labour standards complaint against Ocean Pride claiming termination pay, improper pay deductions, and travel expenses. Ocean Pride countered that the workers resigned from their employment, all deductions it made from their pay were appropriate, and the terms and conditions of employment were consistent.
The labour board noted that for an employer to rely on an employee’s resignation, there must be evidence of words or actions that show a subjective intention to resign along with objective words or actions that demonstrate the employee followed through with those intentions – that a reasonable person or employer would view as a resignation.
The board also noted that Ocean Pride had individual employment contracts with all eight workers from Mexico and the manager didn’t speak to any of them before evicting them from the staff accommodations. Due to the language barrier, there was a disconnect between what the workers were expecting and what the manager was told, the board said, adding that what the English-speaking employee and driver told the manager was not enough for the company to rely on without contacting the workers directly about their concerns.
No intention to quit
The board found that none of the eight workers said anything to Ocean Pride about wanting to change their employment status and the evidence indicated that they were gathered to express concern about their working conditions. Ocean Pride had an obligation to inquire further, but instead it evicted them and ordered them to leave that day – which was also prior to the expiry date on the eviction notice, the board said in finding that the company terminated the workers without notice.
“The subjective intention was lacking because the workers didn't intend to resign - they just wanted a meeting to discuss the termination of another co-worker,” says Thompson. “And the objective component also couldn't be established, because the employer’s actions were actually what prevented the objective standard from being established – the company jumped on it quickly and evicted them, so the actions of the workers leaving didn’t satisfy that objective test, they were effectively forced out.”
“There was also no effort on the part of the employer [to communicate directly],” she adds. “Given the economic power imbalance in the situation, there’s a positive obligation on the employer to request a meeting to clarify the subjective intentions of the workers.”
The board determined that five of the eight Mexican workers were entitled to two weeks’ notice as they had worked seasonally for Ocean Pride for more than two years but less than five years. The other three were entitled to one week’s notice as they had worked for less than two years, the board said.
Wage deductions
The board also found that Ocean Pride’s deductions for work supplies, work boots, and immigration fees were contrary to the Nova Scotia Labour Standards Code, which protects employee wages except for narrow circumstances. The employment contracts didn’t mention these deductions and the contracts actually specified that the company would cover immigration fees. There was no written authorization from the workers for these deductions, so they were in breach of the code, the board said, adding that the code specifically protects the wages of temporary foreign workers by stating that any contract allowing deductions from wages is void.
An employer and an employee can come to an agreement to have certain deductions taken from their wages, but it wouldn’t be enforceable if it would bring the employee’s wages below the minimum wage, says Thompson.
“It’s possible that some of the wage deductions could have been valid had the employer properly included them as part of the employment agreement prior to the start date of the workers’ employment,” she says. “But these employment agreements made no reference to deductions or other policies, and once the employees commenced work they received this policy - because that policy had not been brought to their attention as part of the employment agreement, it wasn’t enforceable.”
“Any proper employment agreement that permits certain deductions should always have careful language to be sure that it's in accordance with the Labor Standards Code,” says Thompson.
Ocean Pride was ordered to pay the workers one or two weeks’ pay in lieu of notice, depending on their service time, the cost of travel back to Mexico, immigration fees, one days’ rent for the early eviction, and the cost of work supplies that was deducted from one of the worker’s wages. The damage award for each of the eight workers ranged from about $2,200 to about $3,600.
“There's a lot of principles for employers dealing with all employees in good faith, but there’s a specific niche that includes temporary foreign workers,” says Thompson. “The Labour Standards Code really goes one step further here in Nova Scotia, prohibiting employers from reducing the terms and conditions that are set out in the contract of employment for temporary foreign workers.”
