'If an employer acts in good faith and acts reasonably, then its management rights will be respected'
An Ontario employer’s practical application of its work-from-home policy helped an arbitrator determine that the policy was reasonable, despite some vagueness in the policy and a union challenge.
“If an employer acts in good faith and acts reasonably, then its management rights will be respected,” says Michael Horvat, a labour and employment lawyer at Aird & Berlis in Toronto. “They don't have to cross every “T,” dot every “I,” and consider every eventuality - KVP doesn’t set the standard that high and say you have to consider every eventuality.”
On March 17, 2020, the City of London in Ontario advised all staff that it was moving to minimal operations and essential services only to ensure the health and safety of employees and the community during the COVID-19 pandemic.
One week later, the province closed all non-essential businesses and many city employees were unable to perform their jobs. However, all employees continued to be paid.
In early May, the city placed about 200 full-time employees on temporary, unpaid emergency leave. As time went by, the city realized that it would have to develop a remote work policy to get employees back to work while maintaining health and safety during the pandemic.
Working-from-home policy
In September, the city implemented a working-from-home policy. The policy allowed managers to confirm work-from-home assignments based on physical space requirements, business needs, and what positions could be feasibly performed from home. The number of days per week working from home could vary and employees working from home were expected to work their “regularly scheduled shift and weekly hours” and to be available “during all core business hours.”
The policy also required employees to attend the office for any necessary meetings, training, or events. These would be communicated in advance but employees “should be flexible to accommodate organizational requirements if called in on short notice.”
Employees were required under the policy to be responsible for the “costs associated with preparing and maintaining the designated workspace,” although the city would review “new incremental costs” related to any new internet connections necessary to support working from home. Employees were also responsible for safe transportation and handling of equipment provided by the city, including a computer, related equipment, and an office chair.
As for occupational health and safety, employees were responsible for arranging their designated workspace in a safe and ergonomic manner, with four specialists available for guidance and support for employees in setting up their workspaces.
The union grieved the policy, asserting that it was unreasonable in several aspects and contrary to the established KVP principles regarding unilaterally imposed employer policies in the labour context.
Policy inconsistent with collective agreement: union
The union argued that the policy was inconsistent with the collective agreement and was vague in saying that employees were expected to be available to work during “all core business hours,” as the collective agreement stipulated that employees could not be required to be available outside of their specific work hours unless placed on standby.
The union also argued that the direction to be flexible to attend the office on short notice was unreasonable and discriminatory based on family status, as employees with families might not be able to make arrangements on short notice. Also unreasonable was the blanket shift of putting the costs of preparing and maintaining their workspace on employees, as well as health and safety responsibilities that are the statutory obligations of the employer, the union said.
In addition, the union challenged the reasonableness of leaving it to employees to transport equipment home, as some might not have vehicles. The policy should have indicated that the city would help with alternative arrangements, the union said.
The arbitrator found that the policy’s language should not be interpreted to mean employees would be required to work outside of their normal hours. The practical meaning of “core business hours” was meant to refer to the normal working hours of employees with no indication of anything otherwise, said the arbitrator.
The arbitrator also found that the language around requiring employees to attend the workplace didn’t suggest that they would be called in with no notice. While the language could have been more clear about the possibility of short notice, there was no reason to infer that employees with family obligations would be forced to attend if they weren’t able, the arbitrator said, adding that the evidence showed that in practice employees were always given reasonable notice and no employee was ever faced with having to choose between their family obligations and work.
Duty to accommodate
The arbitrator referred to arbitral jurisprudence that established that “the duty to accommodate does not depend on express or written representations or promises” and a failure to accommodate would only happen in a specific and individual circumstance. As a result, there was no breach of human rights, the arbitrator said.
“A lot of what the arbitrator concluded related to the fact that no one actually complained about the policy and it didn't really impact anybody,” says Horvat. “The union was asserting a potential breach of either human rights or the collective agreement, but it was on a prospective basis, not on an actual basis.”
In determining the reasonableness of an employer’s policy, there’s an important difference between actual examples of problems versus a union saying something could potentially be a problem without evidence, says Horvat.
“They mentioned that there might have been situations where the employer addressed the issues of accommodation, and that was reasonable,” he says. “That's why the potential issue of accommodation in individual circumstances wasn't an issue here, because the employer handled things on an individual basis instead of mechanically following any vague provisions in the policy.”
As for the cost of setting up and maintaining home workspaces, the arbitrator noted that employees were allowed to take necessary technology and office chairs from the workplace to their home and, although it wasn’t specified in the policy, they were also given pens, paper, pencils, staples, and other office equipment, along with reimbursement for any necessary internet upgrades. Employees weren’t responsible for all of the costs and the city was trying to balance the interests of employees with its own interests in the evolving circumstances of the pandemic, said the arbitrator in finding that the cost issue was a reasonable compromise in a “completely unprecedented situation.”
“The arbitrator gave a fair bit of consideration to the fact that this was a COVID policy that had to be basically made up from scratch,” he says. “It was clear that we were in uncharted territory, so a considerable amount of leeway was given to the policy in the context of the circumstances that drove the policy - I'm not sure if it would be necessarily the same if it was just a run-of-the-mill attendance policy, for example.”
Health and safety obligations
The arbitrator also found that the intent of the health and safety provision in the policy was not to absolve the city from its obligations to ensure employees were safe working at home. The obligation didn’t change and the city provided support to ensure that remote work was being performed safely, the arbitrator said.
The arbitrator also had no problem with the policy giving employees the responsibility to transport equipment home. The evidence was that the majority of employees were able to take their chairs and equipment home and, in the few cases where an employee was unable to, the city dropped the equipment off. Despite the language of the policy not specifically mentioning this, the city’s practice in following the policy was reasonable, said the arbitrator.
There were some elements of the policy that were left to be implied and that can sometimes be a problem, but the city’s practice in applying those implied terms were in line with the collective agreement, says Horvat.
“I think that if there had had been demonstrated problems or breaches, those particular elements would have been remedied by declaration by the arbitrator, but the whole policy wouldn’t have been thrown out,” he says. “Sure, it can be drafted with better clarity, but just because it's not clear, doesn't mean it's a breach, particularly if you have no evidence of a breach.”
“I think that arbitrators give employers more credit than employers may think they do under management rights,” adds Horvat.
Good faith, reasonableness
The arbitrator determined that the city’s work-from-home policy was reasonable and didn’t contravene the KVP principles, the collective agreement, or the Ontario Occupational Health and Safety Act. The grievance was dismissed.
“The employer satisfied the implicit good-faith and reasonableness elements of the KVP rules, and therefore its management rights should be respected in how it was trying to roll out this important policy,” says Horvat. “That’s the feel I get - if the policy itself has an underpinning of reasonableness and good faith in its structure and rollout, employers aren’t going to be held to a standard of perfection.”
