Without-cause firing protection rules out notice entitlement

An Alberta arbitrator has denied two workers’ claims for pay in lieu of reasonable notice because the collective agreement’s prohibition of dismissal without cause was incompatible with common law notice.

One worker, who was  62 years old, was the assistant business manager in the Fort McMurray branch office of the International Brotherhood of Electrical Workers (IBEW), Local 424, since 2002. The other, a 49-year-old, was a full-time office administrator in Local 424’s Calgary office since 2011.

The collective agreement between IBEW Local 424 and its own union recognized its right to dismiss employees for just cause only and required Local 424 to provide notice of termination or pay in lieu thereof based on a table set out in the agreement.

The collective agreement also stated that “some employees may also be entitled to a greater notice period by the courts than the minimum standards legislated by the code.”

On Feb. 21, 2020, IBEW informed both workers that their positions in their respective branch officers were being eliminated. IBEW offered them both transfers to its head office in Edmonton.

The Fort McMurray-based worker didn’t respond to the offer because IBEW didn’t offer a relocation allowance. In addition, her family and friends were all in Fort McMurray, more than 400 kilometres from Edmonton. The Calgary-based worker accepted the transfer offer, but IBEW told her it was no longer available. IBEW then terminated the employment of both workers, providing eight weeks’ pay to each of them. Shortly after their terminations, the COVID-19 pandemic hit and neither was able to find work.

The worker’s union filed a grievance, claiming that both workers were terminated without notice or compensation in lieu of notice as required by the collective agreement. It argued that the collective agreement contemplated a greater notice period than the employment standards minimums, which should be interpreted as common law notice.

IBEW, Local 424 argued that the collective agreement didn’t allow it to dismiss employees without just cause. This entitlement for employees to be free from the threat of dismissal was “incompatible with the common law principle of reasonable notice,” which applied in cases of dismissal without just cause, it said. It also argued that neither worker made much of an effort to mitigate their losses by looking for alternative employment.

The arbitrator noted that courts and arbitrators have considered whether a collective agreement that permits dismissal for just cause only lines up with the common law reasonable notice and “the universal answer is no.”

“[W]hile meaning must be given to every word and provision in the collective agreement on the theory that the parties did not mean to include redundant provisions in their agreement, the interpretation advanced by [the workers’ union] would require disregarding core principles negotiated into this contract and which would eviscerate the protection given generally to workers not to be dismissed without cause,” said the arbitrator.

“As observed by the courts, you cannot have one without the other. This would expose senior employees to the risk of termination simply to reduce the wage burden.”

The arbitrator also found that the collective agreement’s statement that some employees may be entitled to additional notice did not recognize common law notice for all. The agreement identified several different employee classifications, such as permanent full-time employees and part-time employees, who had different rights under layoff and seniority provisions.

As a result, there were employees who may have access to common law notice because they didn’t have protections provided within the agreement, said the arbitrator, adding that this interpretation didn’t displace the principle that “where the employer has no right to discharge without cause, there is no right to reasonable notice.”

The arbitrator dismissed the grievances, finding Local 424 was not required to pay compensation in lieu of reasonable notice.