Legislative Developments-Amendments to National Defense Act Proposes Job-Protected Military Leave
By P.A. Neena Gupta at Gowling Lafleur Henderson LLP for HRinfodesk-Canadian Payroll and Employment Law News, May 2005
The federal government has proposed introducing job-protected military leave for members of the reserve force, often called "reservists" or "militia", who are called out on service "in respect of an emergency."
These amendments reflect the growing importance of the reserve force to Canada's military. The legislation is still in draft form. If passed, it would require employers to reinstate a reservist upon return from service "in a capacity and under terms and conditions of employment no less favourable than those that would have applied if the officer or member had remained in the employer's employment."
Normally, the reservist would be required to exercise his or her right of reinstatement within 90 days of the completion of service, unless hospitalized or mentally or physically incapacitated.
The draft legislation, however, does not indicate how long the reservist is entitled to this protection. These types of details will be worked out in regulations.
The legislation provides the returning reservist with considerable protection during the 12 months immediately following his return to work. An employer would be prohibited from terminating the reservist except for just cause. Just cause normally connotes misconduct or performance problems on the part of the employee. Similar legislation in the United States has created significant difficulties for employers facing downsizings or closures for economic reasons and who wish to terminate a returning member of the armed forces as part of that downsizing.
A strict literal reading of the legislation would exempt the returning reservist from termination, even where the employer could demonstrate a legitimate economic or business reason for the termination, completely unrelated to the military leave or return.
There is also an interesting jurisdictional issue. In general, employment legislation enacted by the federal government usually applies only to federally-regulated entities, such as the federal government itself, the banks or telecommunication companies. In this case, however, the legislation falls within the federal government's responsibilities for the "militia, military and defence" and could apply to private sector employers.
Similar legislation existed in the post-World War II era. In 1951, a Nova Scotia judge held that the legislation applied to all employers, regardless of whether they were federally or provincially regulated.
The draft legislation permits detailed regulations to be prescribed. This author hopes that draft regulations will clarify many of the missing details of the legislation. It is unclear when this draft legislation will become law, although sources suggest it might take as long as another 12 to 18 months.