Judge rules 2 N.W.T. workers ineligible for compensation after layoffs

An N.W.T. Supreme Court judge has quashed a decision to grant two employees working at Diavik Diamond Mine termination pay after they were laid off without notice by their company, Cementation Canada Inc.

Men were employed by a company contracted to do work at Diavik Diamond Mine

Justice Virginia A. Schuler quashed a previous decision that stated Cementation Canada Inc. owed the two men compensation after they were laid off. (Walter Strong/CBC)

An N.W.T. Supreme Court judge has quashed a decision to grant two employees working at Diavik Diamond Mine termination pay, after they were laid off without notice by their contracting and engineering company.

Until 2016, Bryan Lavallee and Lester Bonnell were both employees of Cementation Canada Inc. Lavallee worked with the company for almost four years, and Bonnell for approximately five and a half, according to the judge's reasons for judgment, dated July 27.

At the time that the men were working for Cementation Canada Inc., the company had been contracted by Diavik to "develop and construct the underground part of the mine," the court documents state.

When the men were laid off, they filed complaints to the Employment Standards Office, arguing they were entitled to termination pay.

Cementation Canada Inc. disagreed, arguing the men were not entitled to termination pay "because of a regulation under the [N.W.T. Employment Standards] Act which exempts employees in the 'construction industry.'"

However, the Employment Standards Office ultimately ruled in the workers' favour, concluding they were not employed in the construction industry. It ordered Cementation Canada Inc. to pay Lavallee $4,477.59 in compensation and to pay Bonnell $16,153.85.

Company files appeals

Cementation Canada appealed that decision to an adjudicator and lost.

But now, after the company appealed the decision to the N.W.T. Supreme Court, Justice Virginia A. Schuler has ruled that the men were indeed working in the construction industry and that Cementation Canada Inc. does not owe the men any money for laying them off.

Schuler argued the adjudicator who dealt with the first appeal incorrectly based their decision on the idea that construction work is short-term, and that its short-term nature is the reason construction workers may be exempt from termination pay under the legislation.

"It is not the length of the employment or the construction project, but the lack of control that the construction industry employer has over the length of the employment or project, that is the reason for the exclusion [from termination pay]," Schuler said in her decision.

Defining construction work

Secondly, Schuler argued Bonnell was employed to construct and develop parts of the mine, and was therefore employed in the construction industry.

She said the same goes for Lavallee, who was "engaged in constructing drifts and tunnels for an employer contracted to construct and develop the mine."

Although the N.W.T.'s employment legislation does not define what a construction industry means, "it is clear from the definition of 'work of construction' … that the statute contemplates that a mine can be constructed, just as a building can," Schuler said.

When asked what impact Schuler's decision might have on other employees working at the mines, a spokesperson for the Department of Education, Culture and Employment said they had just received the ruling and will be reviewing it to determine what if any impacts it may have. 


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