CCAC worker denied interim relief ahead of arbitration hearing

Jane Waring, an employee at a community care access centre (CCAC) in Barrie, Ont., believed she had been wrongfully terminated.

But before that case could be presented at an arbitration hearing, a few details needed to be sorted out regarding her dismissal. The case dates back to the summer of 2013, when Waring was let go from the North Simcoe Muskoka Community Care Access Centre.

The Ontario Nurses’ Association filed a grievance on her behalf, arguing the firing was not only a breach of the collective agreement, but also a violation of the province's human rights code.

The union argued her employer failed to accommodate her personal situation and, as a result, acted in discriminatory treatment. As such, the union sought, by way of remedy, that Waring be reinstated with full redress, including the destruction of all documentation related to the incident — and that the employer "cease and desist their discriminatory treatment" of Waring.

According to the employer, Waring was fired after a continued absence and unavailability for work. In this particular decision, the explanations as to why Waring was absent are not important.

What is important, however, is the method in which she was dismissed.

The termination letter detailed an explanation of the employer’s decision. It also indicated that, within 14 days, Waring would be compensated with termination pay in lieu of notice for a period of eight weeks, amounting to slightly more than $11,500. She would also be entitled to severance pay equal to 15 weeks and three days, or about $22,500.

Despite this letter, the employer did not provide Waring with any such pay.

Before filing a wrongful termination grievance, the nurses’ association argued the failure to pay Waring the money she was owed under the Employment Standards Act (that is, termination and severance pay) is a procedural matter, and properly subject to an interim order.

If the grievance was dismissed, the Employment Standards Act payments will have to be made — meaning the failure to provide the monies at this moment is simply deferring the payments. If, however, Waring is reinstated, those payments could be offset by way of remedial considerations, which would flow from her reinstatement.

The employer argued Waring was let go on the grounds the employment relationship had been frustrated.

And under the Employment Standards Act, a dismissed employee is entitled to termination and severance pay if the relationship had been frustrated, but if it had not been, there is no requirement for the employer to provide such pay.

Herein lies the rub. In filing its grievance, the union challenged the determination of frustration of the employment relationship and took the position Waring should be reinstated. So, the fundamental issue is whether the relationship was frustrated at all.

The union’s position is contrary — Waring was entitled to termination and severance pay, but it does not agree the employment relationship had become frustrated.

The employer further contended that the matter is a substantive one, rather than a procedural one.

Because the collective agreement makes no mention of these circumstances, the arbitrator based his decision on precedence — concluding that the union’s request for an interim order should be denied.

In this particular case, the interim relief sought by the union is irrelevant to the manner for carrying out the arbitration proceedings, Marcotte said.

"The difficulty with this submission is that eligibility for termination and severance payments only arises where the employer refuses to or is no longer able to employ the grievor," the arbitrator said in his decision.

"Yet, the grievance challenges the propriety of the employer’s decision to no longer employ (Waring). Thus, until the propriety of its decision is resolved through the arbitration process, it cannot be determined whether or not the grievor is eligible for termination and severance payments."