The grievor was on disability leave when he was laid off, along with the entire staff. However, everyone was rehired except him. The arbitrator found that the layoff was improper and reinstated the grievor.
A condominium superintendent was fired without cause four months after a disabling condition forced him to go on sick leave. When the union grieved, the employer rescinded the termination and notified the worker he was to be laid off.
H.M. was a resident superintendent at a condominium complex. He was hired in 2004.
In July 2011, H.M. provided the employer with a certificate of disability. The certificate, which had been completed by H.M.’s doctor, diagnosed H.M. with vascular disease. The condition made it significantly difficult for H.M. to walk. The note said H.M. was unfit for duty and it was not possible to fix a return-to-work date at that time. H.M. was to be reassessed in three months.
H.M. was fired. The Nov. 9, 2011 termination letter alleged no cause. The union grieved.
In February 2012, the employer wrote to H.M. to notify him the termination notice had been withdrawn. However, the same letter also notified H.M. he was to be laid off effective March 9, 2012.
In fact, the employer laid off all its employees and then recalled them all — all except H.M. who was deemed not to have the skill or ability to perform any job for the company. Elements of H.M.’s job were then assigned to outside contractors.
The union grieved the layoff.
The union said the employer was attempting to recast the earlier termination without cause as a layoff for the sake of expedience.
However, the union said, without express language in the collective agreement to permit such an action, H.M.’s status as an employee who was absent on an approved medical leave prevented the employer from simply laying him off. The employer’s action in this case was in violation of recall and seniority rights and job security provisions spelled out in the collective agreement, the union said.
The employer said it was engaged in an effort to achieve greater efficiencies at the workplace. The employer said that the collective agreement contained only limited restrictions on its right to lay off and management rights spelled out in the agreement gave it the authority to act as it did.
The Arbitrator disagreed.
Work reorganization strategy
It was clear the employer had initially fired H.M. as part of a work reorganization strategy, the Arbitrator said. Of the two superintendents on staff, H.M. was chosen for termination because he was off work indefinitely. However, when the union challenged the termination, the employer changed course and opted for the layoff strategy, the Arbitrator said. The employer zeroed in on H.M. again because of his medical condition, which made him ineligible for recall.
The employer has the authority to reorganize the way work is done. However, that authority is subject to the terms and conditions of the collective agreement, the Arbitrator said.
The employer was thus prevented from making workplace changes by firing people without just cause because the collective agreement prohibited terminations without cause.
The Arbitrator agreed there were no specific prohibitions in the collective agreement against laying off a worker who was on sick leave. However, it was possible to infer from the limited language in the contract that a layoff referred to a period of time off work due to a lack of work and, that employees had a right to be recalled from a layoff when jobs became available.
“In this case, in proceeding as it did, the Employer intentionally and deliberately sought to interfere with the exercise of the Grievor’s rights that apply in the case of layoffs… In fact, the effect of laying off the Grievor when he was absent on sick leave effectively precluded him from exercising a number of rights under the collective agreement including his seniority rights in the case of layoff and recall…, recall by individual job classification in reverse order of layoff…, layoffs in reverse order of seniority…, and recall in order of seniority…”
The layoff was improper.
“These are important rights and impact directly on the job security interests of employees. Such rights ought not to be denied to employees by a deliberate strategy of exercising a management right to layoff when it is impossible for an employee to exercise his/her rights that protect their job security,” the Arbitrator said.
H.M. was ordered reinstated with the status of an active employee.
Reference: Universal Workers Union L.I.U.N.A. Local 183 and York Condominium Corporation No. 281. Larry Steinberg — Sole Arbitrator. Neil Keating for the Union. Michael Campbell for the Employer. June 28, 2012. 19 pp.