Two separate streams for recall, one for staff reductions
A Newfoundland and Labrador employer could not send a worker back to layoff after a temporary recall when there were other employees with less seniority still working, an arbitrator has ruled.
Thomas Howe was an automotive technician for Fairway Honda, an automotive dealership in Corner Brook, N.L. When the COVID-19 pandemic hit in March 2020, Fairway Honda had to lay off a large number of employees, including Howe, on March 24. The dealership was considered an essential business, so it kept one apprentice and one journeyperson technician employed. The positions were offered to the journeyperson and apprentice with the most seniority.
The collective agreement dictated that “where circumstances necessitate a reduction of the working force, company seniority shall determine the employee to be laid off subject to Honda Canada operational requirements. ”
About four weeks after the layoff, Fairway Honda contacted Howe and asked him to temporarily cover vacation for another journeyman technician. Howe accepted the offer and worked for four weeks until May 15, when he was informed that he was no longer needed and would return to layoff.
However, when he was sent back on layoff, three out of the four apprentices on the seniority list and two journeypersons were still working. Howe filed a grievance, claiming that one of the apprentices ought to have been laid off before he was, as he had seniority. He pointed to the collective agreement’s requirement that “for layoff purposes only, when a reduction in workforce is required, the company will include apprentices in the layoff sequence based on seniority.” He also noted that provincial apprenticeship guidelines and the collective agreement set the normal ratio of apprentices to journeypersons at 1:1.
The union added that “one of the golden pillars of this and any collective agreement is seniority.”
Fairway Honda pointed out that the collective agreement, while including apprentices in the layoff sequence based on seniority, also limited the layoff of apprentices to roughly 50 per cent of the total number of apprentices employed, and stipulated that “the company will delegate one journeyman to supervise up to two apprentices working.”
The arbitrator found that, while the collective agreement referred to one seniority list for the purposes of layoffs, it clearly had separate seniority streams for journeypersons and apprentices. As its business gradually reopened, Fairway Honda called back journeypersons as it needed them and apprentices as it needed them.
“Both parties agreed that the seniority list is not dovetailed for such rehire; rather, seniority is traced in terms of seniority of apprentices and seniority of journeypersons, except where layoff is concerned,” said the arbitrator. “There are clearly two separate classifications as articulated and seniority in this workplace has been established and maintained in those separate classifications for recall.”
However, the arbitrator also found that although Howe knew he was only being recalled temporarily in April 2020, the collective agreement didn’t differentiate a temporary recall from a permanent one. As a result, Howe was considered recalled to work and the layoff provision applied. This meant that he was included in a single seniority list with the apprentices and, since three of the four apprentices were working, the dealership could lay off one of them and still meet the 50-per-cent limit in the collective agreement, the arbitrator said.
“The collective agreement has express terms… providing for the reduction of the workforce by employee layoff,” said the arbitrator. “Having called Mr. Howe back to work, sending him back to layoff was reducing the workforce, and the employer’s management rights were then subject to the express terms of the agreement.”
The arbitrator determined that one of the apprentices should have been laid off before Howe on May 15, 2020, and Fairway Honda breached the collective agreement. The matter of damages was left to the parties to negotiate.
