How has the pandemic changed the process? What if there's a dispute?
With business remaining unstable for employers impacted by COVID-19, what should companies be considering when completing a record of employment (ROE)?
Canadian HR Reporter reached out to employment lawyer Colin Gibson, partner at Harris & Company in Vancouver, for some guidance on how to cover all the bases.
Q: What are the best practices in filling out an ROE?
A: “The employer should be filling out the ROE within five calendar days of the interruption in the employee’s earnings and the employer is obliged to make sure that it fills out the form correctly. Once it’s done those two things, the employer has satisfied its obligations.
“Later on, there can be circumstances when an employer recognizes they made a mistake in the ROE or the employee initially wasn’t provided with severance, and now there’s going to be a severance payment. In some circumstances, the employer may need to file an amended ROE.
“It’s important for employers to understand that the obligation is not only triggered when there is a termination of employment but when there’s an interruption in the employee’s earnings. If an employee is remaining in employment but going off on sick leave and their earnings are being interrupted, the employer has to issue an ROE.
“There’s a webpage on the government of Canada site that’s called ‘How to complete the ROE form,’ so I strongly recommend that employers go to that site.
Q: How has the COVID-19 pandemic changed the process around ROEs?
A: “Since the COVID pandemic began, obviously, there’s been a lot of employees applying for employment insurance, and formerly the Canada Emergency Response Benefit [CERB]. Employers were issuing records of employment and Service Canada obviously was interested in getting the money out to employees as quickly as possible.
“They’re currently saying to employers in order to ensure that your employee’s EI claim isn’t delayed, don’t put anything in block 18, the comments section because if you do, then it gets kicked out of the automated system and the ROE has to go to a Service Canada agent, and they have to review the claim manually and that causes delay. Unless you have a very good reason why you have to, don’t put anything in block 18.”
Q: Should an employer consult with the employee before filling out the ROE?
A: “There’s certainly no obligation to do that and I don’t recommend that employers consult with employees before filling out the ROE. There’s nothing that’s negotiable about what the employer must report on an ROE.
“When you go through the guide, you’ll see that the employer has a duty to ensure that the ROE is completed accurately and unless there’s some potential ambiguity about the reason for the interruption in the employee’s earnings, there’s no requirement for the employer to consult with the employee.
Q: What happens when there is a dispute about the reason for dismissal?
A: “The employee will take the record of employment into their local Service Canada office and speak to an agent and describe what their dispute is with the employer. The employer might have said that the employee quit and the employee takes the position: ‘I didn’t quit. The employer terminated me.’ The agent will frequently reach out to the employer to get their version of the events, and then the agent will make a decision.
“If either side doesn’t agree with that decision, they can ask Service Canada to reconsider it. If they don’t like the outcome, they can appeal to the social security tribunal. It’s not up to the employee to go to the employer, they deal with that at the Service Canada level.
Q: How might an employer act in bad faith?
A: “As long as the employer has acted in good faith in the way it filled out the ROE, the fact that the Service Canada agent comes to a different decision about the reason for issuing the ROE shouldn’t expose the employer to any kind of legal jeopardy. Service Canada does point out that it is a serious offence to misrepresent the reason for issuing an ROE or to complete the information inaccurately. If an employer purposely enters false or misleading information on the ROE, they can find themselves being subject to fines or prosecution or perhaps a civil claim from the employee.
“A scenario that an employer needs to avoid is trying to use the ROE as leverage to get the employee to agree to the employer’s severance offer and saying: ‘I’ve made you a severance offer and if you don’t accept this, then I’m going to file an ROE and either say that you quit or you lost your job because of your own misconduct and that’s going to prevent you from getting EI.’ If the employer does that in bad faith that can definitely expose the employer to fines, penalties or civil claims.
Q: What are the potential penalties for false information on an ROE?
A: “The penalty is a fine of up to $12,000 or prosecution and imprisonment or both. Imprisonment and the fine can apply not only to the employer but to the person who is acting as agent for the employer in filling out the ROE.
“The other thing that can happen is a civil lawsuit from the employee claiming some kind of additional damages because of the employer’s bad-faith conduct in filling out the ROE falsely. The employee may claim punitive damages or, depending on the impact on the employee, they may claim aggravated damages. If the employer acts in good faith, it should be OK even if it turns out to be wrong.
“Service Canada does point out that if an employer finds out that it has done something wrong [then] voluntary disclosure may be a good option for the employer, so coming to Service Canada and saying, ‘I made a mistake. Sorry about that, here’s the correct information.’ The employer is going to be much less likely to be subject to fines and penalties if they come clean voluntarily, then if they’re caught out.”
Recently, Canadian HR Reporter spoke to experts about the definition of a ‘comparable position’ after a leave is done and four legal questions around COVID disability leaves.