(A stormy) year in review: how labour decision-makers adjusted sails to weather the pandemic winds of 2020

Though a second year of COVID-19 is no gift, employers can now prepare for it with the benefit of experience they didn’t have before. These include lessons learned, key trends and prospective insights pulled from Canada’s 2020 developing body of COVID-19-specific case law of labour arbitration awards. While COVID-19 has, in some circumstances, provided workplace parties with greater flexibility to address rapidly changing needs, some decisions rigidly applied the fundamental principles of labour law. Further commentary reflecting on how COVID-19 influenced labour decision-makers in 2020, and what outcomes that ultimately engendered for employers, is provided below. 

Where justified, health and safety concerns came first

In appropriate circumstances, decision-makers in Canada have taken into account the fundamental impacts of COVID-19 by adapting the rights and obligations of workplace parties in a reasonable and practical manner. In general, this has resulted in greater deference afforded to both employer- and employee-side actors, particularly where COVID-19-related measures have been challenged or were at issue. 

One key observation standing out from this year’s arbitral case law is the reasonable and sensible approach favoured by arbitrators during COVID-19, which strikes a fair balance between serious health and safety considerations and bargained-for rights. 

For instance, in one Ontario decision, the Labour Relations Board carefully considered the unprecedented circumstances of COVID-19 in holding that a retirement home was justified in implementing a 12-hour shift for its workforce. The union had alleged the implementation of the 12-hour shift, which had resulted in a number of employees being removed from the schedule and replaced with temporary workers, had in effect amounted to an unlawful lockout.  The Labour Relations Board rejected the union’s argument, holding instead that the employer had reacted reasonably within the scope of its authority to protect its clientele.

Similarly, another thoughtful analysis occurred in a Nova Scotia decision, where the arbitrator upheld a rehabilitation facility’s decision to implement a policy prohibiting its employees from working for more than one employer. In doing so, the arbitrator noted that while the employer’s directive would ordinarily likely be outside the scope of its management rights under the collective agreement, it was reasonable in the circumstances given the facts and knowledge existing at the time. The arbitrator further noted that the assessment of reasonableness of an employer’s exercise of management rights will evolve as new information and knowledge about COVID-19 become available.

Trade unions too have successfully convinced arbitrators to alter the scope of certain workplace rights and obligations. For example, in a decision out of British Columbia, the Labour Relations Board relied upon the practical shutdown of a hotel to justify the union’s request for disclosure of information relating to bargaining unit members. The Labour Relations Board held that the union required the requested information to effectively represent its membership, a duty it was unable to fulfil given the reduction of employees in the workplace and the restrictions imposed to prevent the spread of COVID-19.

Where employer evidence was lacking, or management rights tightly circumscribed, collectively bargained rights trumped

While decision-makers have been willing to recognize the unprecedented circumstances created by COVID-19 where appropriate, they have otherwise held employers to the standards that existed prior to the pandemic.

Specifically, decision-makers have been reluctant to allow employers to rely on COVID-19-related reasons as a basis for making unilateral decisions with a potentially significant impact on their employees, particularly where the factual circumstances do not support the employer’s claim. For instance, in one British Columbia decision, the arbitrator found an employer’s decision to lay off an electric utility worker under the auspices of COVID-19 to be arbitrary in the circumstances. In coming to this conclusion, the arbitrator noted that, as an electric utility, there was no evidence to support the employer’s claim that COVID-19 had a material impact on its finances or the demand for its services.¹

Even where COVID-19 demonstrably impacted an employer’s operations, some arbitrators remained unenthusiastic about updating the pre-pandemic scope of employers’ obligations. So was the case in an arbitral decision from British Columbia where a ferry operator was found to have violated the collective agreement by temporarily laying off a significant portion of its workforce. Despite the evidence of COVID-19’s significant impact on ferry services, the arbitrator concluded that the employer did not have an inherent right to temporarily lay off its employees and, by doing so, had violated the collective agreement.²

Notably, decision-makers have generally refused to reduce awards for owed damages, even where an employer faces financial challenges or potential ruin due to COVID-19. Such was the case in Alberta, where an arbitrator refused to reduce the damages otherwise owed by a casino employer who alleged that the unprecedented financial impact of COVID-19 to its business ought to be a factor in determining quantum of damages.

Where safety measures were ignored, the penalties were high   

The available case law – and common sense – suggests that decision-makers are likely to take a violation of COVID-19 rules or regulations very seriously. Where this has happened to date, the consequences have been significant.   

Employers who violate COVID-19 measures or retaliate against employees who attempt to enforce them risk significant penalties. In one case in Ontario, the Labour Relations Board ordered more than $25,000 in damages against an employer who had been found to have retaliated against a migrant worker for, among other things, vocalizing concerns regarding the employer’s health and safety protocols vis-à-vis COVID-19.

This strict approach goes both ways – employees who flout COVID-19 protocols may face significant disciplinary measures. Thus, the summary discharge of an employee for deliberately violating COVID-19 safety measures was upheld by an Ontario arbitrator as reasonable. In this case, the employee had been instructed not to report to work due to exhibiting symptoms associated with COVID-19. He nonetheless returned to the workplace for his next scheduled shift, incorrectly answering in the negative all of the questions on the COVID-19 screening questionnaire. The employer terminated his employment and the decision was upheld at arbitration.

Take-aways for employers

While the full impact of COVID-19 on decisions in Canadian labour law may not be known for some time, early indications suggest that decision-makers are likely to consider the specific and special circumstances of COVID-19 when addressing labour disputes in the (including virtual) arbitration room. However, not all arguments advanced on the basis of COVID-19 will succeed, in particular when the evidence is weak and the facts unclear. 

Looking onwards, it is important for employers to take a step back and carefully consider the extent to which past guidance in the case law can help strengthen their position in 2021. Exploring best options and thoughtfully planning for the year ahead can be beneficial in the long run. Indeed, knee-jerk reactions that aren’t supported by legitimate reasons and demonstrable facts are unlikely to be upheld if challenged.

The author wishes to thank Emily Deraîche-Grossberg, Amélye Paquette, and Alexandra Wright-Mascotto, articling students, for their assistance in preparing this legal update.