Home Arbitration/Labour Relations Fleming College’s decision to layoff staff without 90-day notice justified by pandemic: Arbitrator

Fleming College’s decision to layoff staff without 90-day notice justified by pandemic: Arbitrator

by HR Law Canada

Sir Sanford Fleming College in Peterborough, Ont., was not required to give 90 days’ notice of layoffs to unionized staff during the pandemic, an arbitrator has ruled, because the circumstances were beyond its control.

When COVID-19 took hold in Ontario in March 2020, the college shut down their buildings almost completely — first voluntarily and then as a result of the provincially prescribed lockdown. Much of the operations shifted to a remote or virtual method of delivery for staff and students.

Communications from management

There was regular dialogue between the college and union representatives with written communications and frequent discussions between HR manager Shelley Mantick and Marcia Steeves, the president of OPSEU Local 351.

“These communications referred to the general uncertainty as to the length of the campus closure and the extent of the already significant financial implications of the disruption to normal operations and resulting decline in enrollment. “There were also town hall meetings addressed to the wider college community communicating much of the same information.”

Despite the layoffs of some part-time staff and other cost reduction measures, the college was anticipating an $11 million to $18 million revenue gap.

Considerable efforts were made to avoid layoffs for full time staff, the arbitrator said. Across the province, the College Employer Council and OPSEU reached an agreement with respect to a furlough agreement, which would have provided temporary layoffs in the form of work and pay reductions with access to benefits, without bumping, in lieu of layoffs in accordance with collective agreements.

While the majority of local unions in the province voted to participate in the provincial effort, 71 per cent of members at Fleming voted against.

Eventually, given the size of the college’s projected revenue loss, the union was told in mid-April that up to 68 full-time staff could be laid off in no agreement was reached.

Formal notice issued to union

The college issued a notice to the union on June 1, 2020. It cited the serious financial challenges and the need to reduce costs by laying off 52 full-time support staff and seven probationary employees. Other than the information set out below, no data accompanied the notice of layoff to the union.

“This decision to lay off and release full-time support staff has not been made lightly and only after much consideration and exploration of other options including the furlough/reduced work hours agreement made available to us by central OPSEU and the College Employer Council. The College has considered and is implementing many other cost-saving strategies, but has concluded that additional measures, including the layoff and release of full-time support staff, are required,” it said.

It noted the positions were not needed at this time, or in the near future, because:

  • there is no work being done by the position;
  • the work being done is not critical to the core business and can be stopped; or
  • the reduced amount of work required by the position no longer makes it viable on a full-time basis, and any remaining work can be moved to another full-time support staff who is not fully utilized and has the skill set to take on work.

The union response

Steeves acknowledged the notice, but observed the lack of details required by the collective agreement. Under Article 15.2, the employer was to provide all data it used in coming to the decision.

The employer responded with available data, noting that the financial statements were not yet audited or approved, and that they were working with assumptions for fall enrollment, rather than verified data. 

The collective agreement

The collective agreement stated that employees who completed the probationary period would not be subject to layoff, for any reason, until the procedures it contained had been applied in sequence.

That included giving the union 14 days written notification; providing the union with the data it used in making the decision; and giving 90 calendar days written notification to employees “except in circumstances beyond the reasonable control of the College.”

The 90-day issue

The union took a strong stance on the 90-day provision, arguing a broad interpretation of “exception” would essentially gut the bargained notice provision.

It noted there was a long list of situations in which the employer does not have control over the reasons for layoffs, including cancellation of a contract for provision of services; funding changes; or political events that would reduce the number of international students.

The arbitrator noted that the fact the college gave financial reasons for the layoffs “naturally” leads to questions about the financial circumstances and whether there were alternatives.

“In the most general sense, it would be a rare case where one of the reasons for a decision to layoff employees was not financial,” it said. “Going down the road of questioning the employer’s choices in adoption of financial mitigation strategies leads to a version of an ability to pay argument in my view.”

It noted that there is “always more that could be done” but the fundamentals of the situation could not have been altered.

“With no students on campus, the need for support staff work was significantly reduced and the financial projections made it imprudent to continue maintaining full complement,” it said.  

It also noted that something like the pandemic is in a different category than the “ebb and flow of programing funding or shifting patterns of international students admitted to Canada.”

Ultimate financial impact

The college’s financial projections turned out to be quite accurate. Counsel for the college noted that an audited statement showed a decline of $19 million, which captured the first phase of the pandemic and showed a significant drop in domestic and international students. It also showed a loss of revenue from ancillary operations such as parking.

Enrolment was down almost half in the spring semester, and about one-third in the fall.

The ruling

The arbitrator said the college violated the collective agreement when it failed to give any data with the notice of layoff to the union.

But it did not violate the agreement when it failed to give 90 days’ notice of layoff to the affected employees.

Both the college and the union agreed the decision with deal with only the merits of the dispute and that, if any remedy were in order, the arbitrator would remain seized to deal with the issue at a later date.

For more information, see Ontario Public Employees’ Union, Local 351 v Sir Sandford Fleming College of Applied Arts and Technology, 2023 CanLII 9658 (ON LA).

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