Arbitrator: Notice of layoff can coincide with pregnancy leave

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Where a collective agreement specifies that a period of notice be given to employees before they are laid off, can that notice period run concurrently with an employee’s pregnancy/parental leave, or does the notice clock stop while the employee is on leave? This was the question before a board of arbitration in Ottawa Hospital Corporation v. Association of Allied Health Professionals: Ontario (March 20, 2000).

The arbitration concerned a Recreation Therapist who, in November 1996, gave notice of her intention to take maternity leave from April 1, 1997 to September 30, 1997. Her last day of work was to be March 14, 1997. However, one day earlier, she was given notice that she would be laid off effective October 10, 1997. On June 17, 1997, the employee filed a grievance, claiming she had been given insufficient notice of the layoff. Up until this time, her employer had made no attempt to discuss any vacancies, bumping possibilities or other alternatives with her.

That changed on the day she filed her grievance. On June 17, the hospital notified the grievor that she had the choice of accepting the layoff or exercising her seniority rights, and asked that she identify, by June 27, the positions into which she would like to bump. The grievor responded that she was not able to make a decision about bumping into another position within the time she was given by the employer. However, on June 27, after having been advised of at least one bumping opportunity, she applied for both the voluntary exit package and a posted position of Researcher. The grievor was laid off on October 10, as scheduled.

COLLECTIVE AGREEMENT AND ARGUMENTS

Article 13.2(b) of the collective agreement provided that employees and the union would receive three months notice before a long-term layoff. Under Article 21.6(e), an employee returning from pregnancy leave was to be reinstated to the position she had held most recently, if it still existed, or to a comparable position, if it did not.

The union argued that the three months’ notice provided for under Article 13.2 was intended to give the employee time within which to consider her options under the collective agreement and to make plans to obtain other employment. Being on pregnancy leave prevented her from doing this. Further, Article 21.6(e) provided that she was to be reinstated into her own or a comparable position at the end of her leave, effectively suspending the hospital’s right to implement the layoff. Therefore, the union concluded, the notice of layoff could only have been given following the grievor’s return from leave.

The hospital countered that nothing in the agreement prevented notice of layoff running concurrently with pregnancy leave. The grievor had been given the necessary information for her to consider her options under the agreement and, after doing so, elected to accept the voluntary exit package. Moreover, the hospital contended, Article 21.6(e) did not require that an employee be reinstated at the end of her leave in circumstances where she would have been laid off whether or not she had taken the leave.

GRIEVANCE DISMISSED

A majority of the board of arbitration dismissed the grievance, concluding that Article 21.6(e) did not preclude notice of layoff from running during pregnancy leave. This case, the board noted, did not involve a claim that the grievor could have been laid off during her leave period, and in fact the date of layoff followed her return from leave. Rather, the issue was whether notice of layoff could run concurrently with the leave. Earlier cases suggested that it could, but here, the union had relied on Article 21.6(e) in support of its position that it could not.

The majority of the board disagreed, noting that, as pointed out by counsel for the hospital, the language of Article 21.6(e) was similar to that of subsection 43(1) of the Employment Standards Act. It had been held that subsection 43(1) does not give an employee on leave an absolute right of reinstatement and therefore does not preclude an employer from laying off an employee at the conclusion of her leave when the layoff is unrelated to the leave.

The board majority also rejected the union’s argument that the grievor did not have the same opportunity as those actively at work to obtain information about alternatives to accepting the layoff. After the hospital’s letter of June 17, 1997, the board pointed out, the grievor had been given information about at least one bumping opportunity and the Researcher position vacancy, and there was no evidence that any other opportunities were withheld from the grievor. It was clear that the grievor had had the opportunity, despite her being off work, to discuss her options with both the hospital and the union.

In Our View

Depending on the language of the collective agreement, notice of layoff can run concurrently with pregnancy or parental leave, as long as the layoff notice would have been given in any event. However, it is important to bear in mind that the result here may have been different had the grievor not been given information about her options and the opportunity to exercise these in an informed way, or if she had been incapable of exercising these rights. Therefore, employers must be careful not to prejudice the employee’s rights under the collective agreement by not extending the opportunity to exercise these rights while on leave, or by giving notice to an employee who cannot reasonably be expected to exercise her rights during the leave period.

For further information, please contact Carole Piette at (613) 563-7660, Extension 227.