Unionized optician who refused to work Sundays awarded lost wages, $1K for emotional pain

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A unionized optician in Toronto who was laid off after refusing to work Sundays during the pandemic has been awarded more than $16,000 in lost pay, along with $1,000 for emotional pain and suffering.

Ippokratis Panagos works as a licensed optician at a Lenscrafter location in Toronto’s Yorkdale Mall. He was hired on Oct. 10, 1994. When he was hired, Panagos did not agree in writing to work Sundays. Since the spring of 2014, he has not worked Sundays at his request.

When the COVID-19 pandemic took hold, the Ontario government declared a province-wide state of emergency. On March 24, 2020, it announced that only businesses deemed essential could continue to operate in person.

For Lenscrafter, it meant their services would be reduced significantly — limited to the sale of prescription eyeglasses and contact lenses on an emergency basis. At the time, Panagos had the most seniority at the Yorkdale location. He was represented by the Union of Food and Commercial Workers (UFCW) Local 1006A.

Lenscrafter decided to reduce its workforce in the wake of the provincial restrictions, employing only one lab technician and two licensed opticians at the Yorkdale Mall location. The reduction in staff lasted until November 2020, when its retail employees were recalled.

Sunday work

In order to properly staff the Yorkdale location, the licensed opticians were required to be available to work on Sundays on a rotational basis.

On April 11, 2020, the general manager called Panagos and inquired about his availability to work Sundays. The GM told him an inability work Sundays may affect his recall rights.

Panagos said he responded by asking for time to consider his options, but that he would not be available to work the following Sunday because it was Orthodox Easter.

Lenscrafter concluded Panagos was not able to work Sundays, and it laid him off on April 19, 2020. The two opticians it retained had less seniority than him. The UFCW immediately grieved the layoff.

On May 3, 2020, the mall announced it would temporarily close on Sundays. The employer did not know how long the Sunday closures would last. Yorkdale Mall reopened on Sundays on or about June 28, 2020. Panagos was not recalled during that period.

Recall offer

On July 21, 2020, Panagos was offered a recall. Included in it was a requirement to work on Sundays. He accepted the recall and his first shift was scheduled for Sunday, Aug. 2.

He was scheduled for, and continued to work Sundays, but continued to assert his rights under Ontario’s Employment Standards Act not to work Sundays. The continued Sunday scheduling was grieved by the union (a separate matter, not addressed in this ruling.)

Refusing Sunday work under the ESA

The employer argued Panagos had no right under the ESA not to work Sundays, because the collective agreement provided a greater right or benefit than the legislation.

Section 72(2) of Ontario’s ESA states that an employee may refuse to work on a Sunday. But it’s not an absolute right. It’s subject to a number of exceptions — including if a worker agreed, at the time of hire, to work on Sundays.

Arbitrator Daniel P. Randazzo ruled the collective agreement did not provide a greater right or benefit, and therefore Panagos was able to invoke his right under the ESA.

Lenscrafter also argued the union, acting as his agent, waived his right to refuse Sunday work. The arbitrator said it is possible for a bargaining agent to agree to a statutory exemption.

But the language in the collective agreement did not reveal an “unequivocal intention to override the statutory right to refuse work on Sundays,” said Randazzo.

Act of reprisal

The employer argued that it couldn’t get Panagos the minimum 35 hours of work required by the collective agreement if he refused to work Sundays.

Given the restrictions imposed by the pandemic, Lenscrafter argued his layoff was an inevitable result and consequence of his refusal to work Sundays.

The arbitrator, though, said the refusal to work Sundays may not have been the only reason he was laid off, but it was certainly one of the reasons — which was sufficient to find a violation of the ESA. Therefore, the decision to lay him off was an act of reprisal.

Remedy for lost wages

The purpose of any compensation award is to put Panagos in the same position he would have been had he not been improperly laid off.

The arbitrator chose an award that compensated him for hours he would have worked, minus Sundays. (It based the calculation on the next most senior optician’s hours worked and removed the Sunday shifts.) That came to $16,256.19.

CERB benefits

Panagos received $6,000 in payments under the Canada Emergency Response Benefit (CERB) during his layoff. The arbitrator ruled that amount should be paid back to the government by Lenscrafter out of the award.

“(Panagos) is not entitled to a windfall. CERB, if not repaid, would constitute such a windfall,” the arbitrator said.

Once Panagos was paid the $16,256.19, he would then become ineligible for CERB and it would have to be paid back.

The employer was ordered to hold $6,000 back of the award and pay it to the appropriate government agency. The balance would be paid directly to Panagos.

Remedy for reprisal

The union sought $5,000 for loss of dignity, hurt feelings, emotional pain and suffering, depression, and anxiety.

The arbitrator, though, noted Panagos did not seek medical assistance or counselling, and there was no evidence that he received or continues to receive treatment.

The arbitrator awarded $1,000 for the emotional pain and suffering and loss of dignity flowing from the employer’s breach of the ESA.

For more information see EssilorLuxottica Canada Inc. v UFCW, Local 1006A, 2022 CanLII 106065 (ON LA)