Tackling The Coronavirus At Work – What’s Next? (Part 3)

“I see the disinfectant where it knocks it out in a minute. One minute. And is there a way we can do something like that by injection inside or, or almost a cleaning? Because you see it gets on the lungs and it does a tremendous number, so it will be interesting to check that.”

                                                                                                                                 Donald J. Trump

I’ve distributed two bulletins about how the clock has started ticking in relation to laid-off employees and the status of their employment relationships.  My objective was to encourage planning for what employers will do when COVID-related restrictions ease and businesses start gearing up.

In particular, I wanted to get employers thinking about what they are facing if…

  • they resume operations but recall only some employees to their regular work schedule, or
  • they don’t resume operations at all. 

Earlier in our post-social existence, businesses really haven’t had to think that far ahead, largely because in the rush to curtail operations in support of social-distancing initiatives, there simply wasn’t time.  Few people were planning the mechanics of what would happen 2 or 3 (or 6) months down the road when it becomes time to scale up once again. 

The time to be engaging in that planning is right now because it could be upon us before we know it.  For some businesses, it already is

I have previously looked at this issue through the lens of the B.C. Employment Standards Act and the common law of employment/wrongful dismissal.  In this instalment, I’ll examine the world of unionized employment settings.

Unionized Employers and Collective Agreements

In my view, the single biggest loss suffered by employers which become unionized is the discretion to selectively terminate the employment relationship of any employee, at any time, for any (non-discriminatory) reason, on a without-cause basis.  The flexibility which that right provides non-unionized employers is priceless and, on a day-to-day operational basis, provides the employer with broad freedom to choose its desired workforce.

But it’s not so in a typical unionized setting.  Unionized employers must comply with strict seniority-based layoff and recall and termination processes, and so cannot choose their workforce with anywhere near the same degree of flexibility.

That limitation applies in the COVID world of layoffs and recalls as well.  Now that most employers have already imposed necessary layoffs, when recalls to active duty soon become a reality (if they aren’t already), unionized employers will be compelled to abide by the recall rules contained in their collective agreement.

There is some flexibility in this process available to some unionized employers.  Unionized employers will, for instance, usually be able to distinguish between employees for recall purposes based on their skills and qualifications.  

No unionized employer is going to be required to recall an unqualified employee to an available position.  But, it’s important to understand that qualifications will usually be measured on an objective basis, not on the employer’s subjective preference for one person over another.  In many collective agreements, the rule is simply that the most senior, qualified employee must be recalled. 

That’s a very different standard than allowing the employer to choose the most qualified employee.  It is a rare collective agreement which permits the employer to select the person whom it considers to be the best qualified for the position.

Many collective agreements do provide for the application of seniority (for things like recalls) on a departmental (rather than company-wide) basis.  That principle gives the employer a more effective ability to recall employees based on their qualifications and seniority within the department as opposed to within the workforce as a whole.

Collective Agreements and the Employment Standards Act

It is worth noting that collective agreements must, overall, comply with the minimum statutory requirements set out in the B.C. Employment Standards Act.  That means that unionized employers can expect to be subject to the notice/pay in lieu requirements of the Act in the event employees are not recalled and their employment is terminated. 

(Review my earlier bulletin addressing the impact of the Act in this situation for my view on how the Employment Standards Branch is likely to apply - or not apply - the notice/pay in lieu provisions in the Act to this COVID situation.)

But, the Act does give employers and unions a limited discretion to negotiate provisions which depart from the minimum statutory standards.  So, in the unionized world, termination of seniority (and, thus, employment) will usually occur as a result of the eventual expiry of an employee’s recall rights.  It’s not unusual for those rights – set out in a collective agreement - to last for as much as a year.  In theory at least, the termination of employment of many inactive unionized employees won’t happen for quite some time.

However, the Director of Employment Standards can always overrule the recall rights contained in a collective agreement and determine, at an earlier date, that the employment relationship has been terminated.  Unionized employers can perhaps expect that to occur if they have imposed layoffs and it’s apparent there is no reasonable prospect of the employees being recalled to active duty.

It seems fairly plain that the path forward in unionized settings will be more straightforward – thanks to the existence of collective agreement provisions governing layoff and recall – than in non-unionized settings.  The price of that clarity, however, may be the employer’s loss of its discretion to freely choose who they wish to recall to active duty when the economy “re-opens”.

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This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.

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