Length of service determined by collective agreement, not by statute
Despite a four-year gap when he resigned his job near the middle of his 19-year career, a laid off worker grieved claiming he was entitled to severance for the total of his accumulated years of service according to the terms of the Employment Standards Act.
First hired in 1987, B.H. left his employer in 2000 for a four-year stint with another employer. B.H. returned to his original employer in 2004 and was laid off in 2010.
The employer paid B.H. termination and severance payments according to the terms of the collective agreement, based solely on his second, six-year term of employment.
The union argued that because the provisions governing severance in the Employment Standards Act (ESA) would provide a greater benefit to B.H. than the severance provisions in the collective agreement, the Act should be used to calculate his severance pay.
Severance provisions in the ESA specify that severance is payable for the full duration of an employee’s employment — whether or not it is continuous, the union said. Applied to B.H.’s circumstances, his entitlement under the ESA amounted to 27 weeks’ pay: a sum representing the maximum of eight weeks for notice of termination plus 19 weeks’ pay — one week for every year of service.
The ESA did not apply, the employer said.
The terms of the Act would only apply if the Act were found to provide greater rights or benefits than the collective agreement. This was not the case.
One regime or the other
The choice was between one regime or the other, the employer said — the legislation did not require integrating the two schemes. Moreover, in order to make a proper determination, it was necessary to consider the full array of rights on layoff and termination as set out in the collective agreement, the employer said.
However, clear language was necessary to support the proposition that the collective agreement intended that prior service should be included for the purposes of calculating severance pay. That was not the case here, the employer said.
The Act did not provide a greater benefit to the “collective” employees governed by the collective agreement, the Arbitrator said. The lump sum payments provided for in the collective agreement were three times greater than what the Act provided for, the Arbitrator said. The collective agreement also set out recall, rehire and job protection measures.
The union was seeking to have B.H.’s particular circumstances considered in isolation, the Arbitrator said.
“Even if I were to do so, I cannot find that the Grievor has greater rights under the Act. To claim the benefits under the Act the Grievor, in my view, would have to relinquish his rights under the Collective Agreement.”
H.B. couldn’t have it both ways, the Arbitrator said.
Act does not apply
“The drafters of the Act, in my view did not contemplate the hybrid situation that the union suggests. The Act was not designed to permit an employee, covered by a Collective Agreement, to cherry pick the parts of the Act that benefit him, in this case service, then revert to the more generous benefits under the Collective Agreement in order to calculate the severance payment.”
The Arbitrator could not “read” the Act into the collective agreement.
“What the union is asking me to do is grant a remedy which is beyond the four corners of the Collective Agreement … The Grievor cannot, in my view, ask for the minimal standard provided for under the Act and at the same time seek to avail himself of the greater benefits in the Collective Agreement that are in conflict with the Act. The Act either applies or it does not. I have concluded that it does not so apply.”
The grievance was dismissed.
Reference: General Dynamics Canada and Salaried Employees’ Alliance of Canada. Sydney Baxter — Sole Arbitrator. Lynn Harnden for the Employer and Beverley Burns for the Union. November 24, 2010. 17 pp.
