Millworker displaced by technological change not entitled to severance

Millworkers Manjit Nijjer and George McEwen both lost their jobs because of a technological change at Canadian Forest Products, but at the time were on disability leave, which complicated the terms of their severance pay entitlement.

Both worked as planer graders at the company’s Prince George, B.C., operation but at the time their positions were eliminated, they were also on medical leave and in receipt of long-term disability payments.

While Nijjer was still receiving the benefit, McEwen came off his benefit as a result of his being retrained and taking employment with another employer. He was not able to perform any other jobs with Canadian Forest Products as a result of his medical circumstances.

Both the employer and the union, the United Steelworkers Local I-424, agreed Nijjer’s claim for severance pay had not yet crystallized due to the fact he remained on medical leave.

However, with respect to Mc-
Ewen, the union said he became entitled to the benefit when he came off of his medical leave and his long-term disability benefits stopped rolling in.

The employer, on the other hand, said McEwen was never in a position to return to work for the employer, with the result that the termination of his employment was not brought about by the technological change.

Instead, leaving the employer was a direct result of his medical condition. Further, the employer said Mc-
Ewen effectively resigned his employment with the employer when he accepted the job at another workplace.

In his decision, arbitrator John Kinzie said that, with respect to Nijjer’s claim for severance pay, he should await a time if and when he does come off of the long-term disability benefit and is fit to return to work in the employer’s operation.

However, the employee would not be required to formally report to the employer before being entitled to claim his severance pay as the employer had contended, Kinzie said.

With regard to McEwen, Kinzie said that even though he was on a medical leave of absence at the time, he was "displaced" from his regular job of planer grader by the employer’s decision to implement a technological change at the Prince George sawmill by introducing the new mechanical system.

Further, Kinzie said it was upon the union to establish that McEwen suffered job loss or diminution due to that technological change.

The union failed in this regard, Kinzie said.

"McEwen would not have been capable of returning to work as a planer grader or in any other capacity with the employer given the nature of his injuries," he said.

"McEwen’s case from beginning to end has been about his medical condition. That condition rendered him unemployable in the Prince George sawmill.

"Thus, while he eventually suffered job loss with the employer, on the facts before me, it was not because of any mechanization, technological change or automation, within the meaning of the collective agreement; it was because of his medical condition."