Broadcaster’s budget cuts lead to benefits dispute

A public broadcaster in Ontario was accused of violating the collective agreement by failing to provide soon-to-be laid-off employees with benefit coverage.

Though the grievance, filed against the Ontario Educational Authority by Unifor Local 72M, was initially a policy grievance, it only concerned one employee, referred to as "H."

Faced with budget cuts, the employer, a provincially funded and regulated broadcaster, was forced to reduce its staff and, as a result, offered those laid-off workers several options, including a severance pay package, opportunities to fill existing vacant positions, bumping a junior employee or remaining on the recall list.

H accepted the severance offer and requested continuation of his benefits, as per the collective agreement. However, the employer responded that by choosing the severance option, he had forfeited his employment and as he was not being laid off, continuation of benefits was no longer an option.

Unifor filed a policy grievance, arguing the collective agreement’s layoff clause dictates an employee, having received notice of layoff, is clearly entitled to continuation of benefits accordingly as a "laid-off employee", whether choosing to maintain recall rights or accepting severance.

"It makes no sense to allow an employee to continue benefits, and then take early severance, but to disentitle the employee to benefits if severance is chosen at the time of layoff," the union said.

Unifor also produced 10 examples between 2004 and 2010 of past practice that supported its position. They showed that where standard options, including acceptance of layoff and recall rights and severance, were offered to employees, they were allowed to continue their benefits, with the option of accepting maintenance of recall rights.

The employer too said the collective agreement backed its position. However, it argued the collective agreement clearly distinguishes between an employee "to be laid off" and "a laid-off employee" and that the provision only provides the possibility for the continuation of benefits to the latter. That the language was different was deliberate, the employer said.

According to the employer, when an employee "to be laid off" chooses severance, based on the contract, it results in the employee being terminated, as opposed to laid off — therefore, such an employee is no longer considered a "laid-off employee" and thus cannot request a continuation of benefits.

Being a policy grievance, arbitrator Norm Jesin said he would make no determination regarding H’s particular case, but that he agreed with the employer.

"(The collective agreement) deliberately uses different language in entitling benefit continuation to ‘laid-off employees’," Jesin said in the decision.

"That language clearly applies to employees whose status will continue as laid-off employees after implementation of the layoff.