LAY OFF- UNION MEMBER EMPLOYEE

[Mina Rabbanian]

#108840

Forum: Private

GOOD AFTERNOON,

HOW THE COMPANY SHOULD PROCEED IF ONE OF UNION MEMBER EMPLOYEES’ LAY OFF HAD EXCEEDED THE STATTUTORY LIMIT AND LAY OFF IS ONLY MENTIONED IN MANAGEMENT RIGHTS SECTION IN THE COLLECTIVE AGREEMENT.

THANK YOU,

[Haley O’Halloran]

#108841

Good afternoon,

When a unionized employee’s layoff exceeds the applicable statutory limit, the company should review both the employment standards legislation in the relevant province and the collective agreement before deciding how to proceed. The fact that layoffs are mentioned only in the management rights section of the collective agreement does not automatically mean the company can extend a layoff indefinitely or beyond the statutory limit. Management rights generally remain subject to applicable legislation and the collective agreement as a whole.

The key issue is whether the layoff has triggered a statutory termination, whether an exception or extension applies, and whether the employer has complied with any applicable collective agreement provisions. The company should also consider whether the union must be notified or consulted and whether the circumstances could give rise to a grievance.

For example, if the employee is in Ontario, the Employment Standards Act, 2000 generally permits a unionized employee to remain on temporary layoff beyond the usual 13-week threshold only if the applicable statutory conditions are met. Under section 56(2)(c), a longer layoff may qualify where the employer recalls the employee within the timeframe established in an agreement between the employer and the union. The collective agreement’s specific wording is therefore important; a general management rights clause that mentions layoffs may not, by itself, establish the required recall timeframe. If the statutory limit has been exceeded, employment may be deemed terminated from the first day of the layoff, potentially triggering termination entitlements.

Recommended next steps:
1. Confirm the province in which the employee works and calculate the applicable statutory layoff period.
2. Review the entire collective agreement, including layoff, recall, seniority, grievance, and termination provisions, as well as any relevant past practices or separate agreements with the union.
3. Consult the union and obtain advice from a labour lawyer before deciding whether to recall the employee, negotiate an extension, or process termination and any applicable payments. Do not assume that a management rights clause overrides statutory obligations.

-HRInsider Staff

[Author]

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