An important little document

Is your employment on the record?

Everybody’s job should be once it ends, with the proof coming in the form of a Record of Employment (ROE) — a document employers are required to complete whenever a worker’s earnings are interrupted, whether through termination, temporary layoff, or other reasons. The ROE is supposed to show a worker’s recent earnings and the reason for dismissal, and it’s mainly used to determine if the worker is entitled to employment insurance (EI) benefits.

With the coming of the pandemic and the need for many employers to temporarily lay off workers for uncertain periods of time — plus new legislation temporarily changing the rules for layoffs — the issuing of ROEs may be a little more complex than usual. The rollout of vaccines and many employers adopting vaccination mandates for their employees had added the question of how to handle ROEs for employees who can’t work because of a refusal to get the vaccine.

A few months ago, the federal government issued guidelines on how employers should fill out ROEs issued for pandemic-related reasons, including what codes to use. The government further clarified things recently for situations such as lockdowns, the employee quarantining, the employee refusing to come to work, or the employee refusing to comply with a vaccination policy.

For the most part, an ROE can be pretty straightforward, but sometimes it can be a little complicated when it comes to the reason for it being issued if there’s a dispute or if the circumstances are acrimonious. Employers have to be cautious and make sure that the ROEs they issue are accurate or they may face legal trouble.

If an employer issues an ROE with incorrect or false information, it could be subject to a fine from Service Canada or even imprisonment. In addition, it could face a lawsuit from the worker if the worker suffered damages because of the inaccurate document or if the employer drags its feet in issuing the ROE.

Legal decisions involving ROEs

Back in 2001, a British Columbia employer waited four months before issuing an ROE to a dismissed employee — employers are normally required to issue one within five days of the interruption in the worker’s earnings. The B.C. Supreme Court found that the employer’s failure to issue the ROE within a reasonable period of time hurt the worker’s ability to get EI benefits and awarded increased wrongful dismissal damages: see Perrett v. Harrison Galleries, 2001 CarswellBC 3133.

In 2013, the Ontario Superior Court of Justice ordered an employer to pay punitive damages on top of wrongful dismissal damages after the employer refused to issue an ROE to a terminated employee. The employer also withheld vacation pay and wages: see Nelson v. 977372 Ontario Inc.

Another B.C. employer in 2015 got into trouble for threatening to avoid its obligation for accurate information on an ROE. It told a dismissed employee that it would only indicate on the ROE that the dismissal was without cause if the employee accepted its severance offer. Obviously, this was illegal and the B.C. Supreme Court ordered the employer to pay $10,000 in aggravated damages in addition to wrongful dismissal damages: see Johnson v. Marine Roofing Repair & Maintenance Service (2003) Ltd.

ROEs are fairly simple documents, but can get complicated quickly if not done properly. The important thing to remember is that they must be issued every time a worker’s earnings come to a halt. If not, then the employer may be on the record for legal liability.