Termination clause ‘absolutely unacceptable,’ company bargained in bad faith: Union
An employer operating a nursing home in Red Deer, Alta., has stepped back from a controversial termination-without-cause clause in a collective agreement, according to the union with which it was engaged in negotiations.
According to a Jan. 29 statement from Symphony Senior Living Aspen Ridge, the company was looking for a without-cause article in the collective agreement.
The Ontario-based company said it was negotiating for the clause with the Alberta Union of Public Employees (AUPE) in order to protect the “employer’s ability to remove employees deemed inappropriate, unwilling, or uninterested to care for frail seniors or participate as a respectful team member in situations that don’t fall within obvious ‘for cause’ incidents or situations that ‘fall through the cracks.’ ”
The company stressed it needs to retain the right to dismiss a worker without cause to protect the patients at the care home.
Workers went on strike at the facility on Jan. 28 after talks between the union and the company failed, and the AUPE filed a complaint to the Alberta Labour Relations Board.
“It’s absolutely unacceptable to us,” said AUPE president Guy Smith. “We put in a complaint into the Alberta Labour Relations Board saying that it was bargaining in bad faith because bargaining came to an impasse on an issue which was sort of a fundamental right, that would be seen in any collective agreement in the country.”
The issue was scheduled to go in front of the tribunal on Feb. 1, but the company and the union were able to hammer out a deal overnight on Jan. 31. The deal was ratified the next day and workers were back on the job on Feb. 4.
The without cause wording was taken out of the contract and arbitrations are necessary if there is a termination, said Smith.
“Basically terminations would, if need be, go through an arbitrator who would rule on it,” he said.
The employer still wanted a provision to not have an employee reinstated, even if a worker was not found to have acted improperly, because it believed the employment relationship would be broken at that point, said Smith.
To remedy this, a provision has been put in place so the arbitrator is free to provide another remedy instead of reinstatement if necessary, he said.
“Everything is subject to review to ensure that there was cause for disciplinary action to take place,” said Smith.
The three-year agreement covers about 130 workers, including licensed practical nurses, health care aides and support staff in areas such as dietary and housekeeping. The collective agreement was the first one ratified for the private-sector nursing home.
Lisa Brush, president and CEO of Symphony Senior Living, refused to comment on the labour situation, but said the company was happy workers were back on the job.
The Jan. 29 statement released by the company outlined six cases where AUPE had legal battles with different health-care employers over terminations “that reinforces management’s stance” on the issue.
“It is time-consuming and expensive to battle such arbitrations,” Brush said in the statement. “Being required to go through such hoops and fight such battles is contrary to the interests of residents and not good for business.”
Clause not common in collective bargaining
A without-cause item is not something the union has had to deal with very often in negotiations, said Smith.
“Out of the 120-odd collective agreements we have, I think it’s only shown up at one other table,” he said. “What we did with that other case was unlatched that issue from the rest of bargaining in order to get a collective agreement in place. Again, it was a first collective agreement and that issue alone is being sent to an arbitration.”
Termination without cause is a rare situation in labour law, said Michael Ford, a partner with law firm Davis LLP in Calgary and a labour-focused lawyer who deals with another fairly large long-term care facility in his practice.
“It really depends on what kinds of problems (the employer is) dealing with,” he said.
Employment standards legislation means there would always be a minimum statutory amount the employer would have to pay regardless of an item in a collective agreement.
“The employer in this case couldn’t just say they were firing someone without just cause and not give any severance,” he said.
The Jan. 29 statement from the company outlined a “generous” severance package in the event of a termination without cause, which was to include three months’ pay for the the first year of service and one month for every year of employment after that, up to a maximum of 24 months.
“This was offered in continuing good faith and to send the message that they care for employees even when a job doesn’t work out,” said Brush in the statement.
The minimum severance amount legislated in Alberta is capped at eight weeks after 10 years of employment, said Ford.
In addition to dropping the termination demand, the agreement finally accepted by the parties includes significant salary increases.
