HR Home › Forums › Answer for Advice when laying off Unionized Staff due to Government Mandate during the current COVID-19 Pandemic
My goodness. This is a tricky one. Before I begin, I want to be clear that I AM NOT QUALIFIED TO SERVE AS YOUR LEGAL COUNSEL AND THAT THIS IS JUST A PERSON OPINION RATHER THAN LEGAL ADVICE. MOREOVER, THAT PERSONAL OPINION IS BASED JUST ON WHAT YOU SENT ME AND NOT A FULL UNDERSTANDING OF THE FACTS. IN ADDITION, TO THE EXTENT YOU HAVE RECEIVED LEGAL ADVICE FROM A QUALIFIED LAWYER FAMILIAR WITH THE SITUATION, YOU SHOULD FOLLOW IT OR AT LEAST SEEK CLARIFICATION.
Okay, now that I’ve provided my disclaimer, I’ll say that my personal opinion is that the union DOES have a point.
First of all, a strong case can be made that the temporary layoffs are, in fact, an adjustment plan subject to Section 54, especially insofar as the provision is specifically mentioned in Article 25 of the collective agreement. Somebody would have to research the LRB guidance and case law to determine whether the union would win on such a claim. But the one thing I feel reasonably sure of is that the pandemic wouldn’t be grounds for relief from Section 54 obligations.
Collective agreement: If your lawyer is telling you that the Collective Agreement doesn’t apply during a pandemic, you should believe him/her. But I’d also ask for an explanation why it doesn’t apply. There’s nothing in the provisions you included that says anything like that. But, of course, I don’t have the entire agreement and there may well be something that excuses contractual obligations during the pandemic, like a force majeure or Act of God clause. Ask your lawyer to point you to that language or, if there is no such language, other basis for his/her conclusion.
One more thing is bothering me: What does Article 2.06 say. That’s the clause referenced in the School Closure provision as not being subject to that provision.
Bottom Line: Believe your lawyers but ask them to explain the legal basis of their conclusion that the collective agreement doesn’t apply; ditto for Section 54. If they can’t offer a satisfactory explanation, I think the union has a case–not that it would necessarily win but that it would survive a motion for summary dismissal.
Hope this helps. Glenn