Layoffs in a Unionized Workplace

Layoffs in a Unionized Workplace

There has been a massive amount of information circulating online about layoffs, much of it focused exclusively on non-union employees and their rights under the Employment Standards Act. Unionized businesses are not immune to slowdowns in our current economic crisis, with labour cost reduction measures announced daily.

What are the rules about layoffs of unionized employees? Here are some things to keep in mind.

1. Layoff Rights Determined by the Collective Agreement

If the employer has the right to lay off employees due to a lack of work, the procedures will be outlined in the Collective Agreement (CA). Have a look at your CA and see if it contains layoff provisions. Even if you don’t see a section in the Table of Contents called “Layoffs” keep reading reading through the CA. You might find information on layoffs in a section on “Seniority”, “Hours of Work (Reduction)”, or “Displacement”.

2. Notice Provisions

The notice period required will likely be outlined in the layoff provisions of the CA. Where no notice is specified, we recommend that the employer and union discuss the situation and work collaboratively in rolling out layoffs in a manner that will minimize the negative impact on the business and workers.

3. Bumping Rights

Normally, the CA will specify that layoffs must take place in order of seniority (last hired—first laid off) in each job classification. However, some CAs allow more senior members to “bump” more junior members from other job classifications if the employee has the ability to perform the job, or to perform the job of the more junior person with minimal (specified) training. Employees who are bumped can then in turn bump others with less seniority, and so on. These situations can become quite complicated with a larger unionized workforce with many job classifications, and this is another reason for the employer and the union to work closely together to try to rollout the desired layoffs without the need for grievances.

4. Recall Rights

Some CAs may allow employees to choose severance if they are laid off and do not want to be recalled to their job. Other CAs trade off severance payments for recall rights (the right to return to their job when the work returns). Recall rights are an alternative to severance pay. Recall rights are usually managed in order of seniority, just like the layoffs—the person with the most seniority is the first recalled when there is enough work. Recall rights will usually last a specific period of time as specified in the CA.

5. Union-Management Communications are Critical

In difficult situations where layoffs are necessary, it is very important to maintain open communication between union and management ensure that both parties have a common understanding of how things will proceed pursuant to the language in the CA. Since layoffs are uncommon in many unionized workplaces, the language in the CA may never have been used. Good communication can help everyone focus on recovery efforts to get the business back to full capacity and full employment. If the union and management are not on the same page, grievances regarding the process distract from these recovery efforts.

We act for both businesses and unions and can help navigate the process of layoffs of unionized workers. If you would like a lawyer to review your CA, or to assist you in working together on a plan for layoffs of unionized workers, we can help.

If you are a unionized worker, we encourage you to contact your union representative as a first step if you have questions about layoffs.

 

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Five Tips for Conducting a Trauma Informed Interview

I learned a great deal about the importance of using a trauma informed approach to interviewing during my time as a Member of the Parole Board of Canada, interviewing offenders in what were often highly-charged and emotional hearings regarding their conditional release from prison. The goal of using a trauma informed approach is to avoid re-traumatizing (adding unnecessary stress or doing further damage) those being interviewed. A benefit of the approach is that you are likely to get better information, and the interviewee will leave the meeting feeling respected rather than victimized by the interview itself.

A trauma informed approach is not developed through following a checklist or a list of techniques, but rather by being constantly aware, paying attention, and being sensitive to the experiences of others.

Consider the following when thinking about a trauma informed approach to interviewing:

  1. Build some rapport. Neutrality is key to an investigation, but the person you are interviewing will not be as forthcoming if you begin your questioning completely cold. Begin with some simple questions regarding the person’s role or background that will allow them to observe your interview style before you begin to discuss more difficult topics. You might also ask how they are feeling about being interviewed. Acknowledging the difficult situation the person is involved in (without expressing your opinion) can also be helpful in building rapport.
  1. Give the interviewee a sense of control. Allow the person being interviewed some control over the interview. Ask them where they would like to sit. Tell them from the start that it is ok for them to ask for a break whenever they feel that it they need it. Tell them the topic areas that you will discuss, and ask them where they want to start. When interviewing someone who has been through a traumatic incident, allow them to tell their story without frequent interruptions. You can ask follow up questions once they have relayed the narrative in the most comfortable way for them.
  1. Choose your questions carefully. Where possible, ask open-ended questions. Avoid a cross examination approach. Don’t ask questions that sound accusatory or judgemental, for example, “Why didn’t you talk to your supervisor right away?” Don’t be afraid of pauses—quiet reflection may be important in terms of allowing the interviewee time to gather their thoughts.
  1. Be sensitive to differences. Be aware of gender and cultural issues that may impact the situation. Some cultural groups may be less comfortable responding to questions of a personal nature. Cultural differences might result in misinterpretation of body language or non-verbal cues. The person being interviewed might feel more comfortable with a support person of the same gender or from their cultural group.
  1. Consider what you are bringing to the table. Be aware of your own issues, experiences, and biases and how they might affect your questioning. Are you convinced that this person did something wrong? Does this person remind you of someone from your own life? Are you personally outraged or offended by the accusations? If you are reacting in a negative way during an interview, take a break and consider why this is happening.

When dealing with a serious workplace complaint of harassment or bullying, or if there are concerns about bias in conducting an investigation, an employer may want to consider engaging the services of an independent, third party investigator.  At Forte Law we provide third-party investigation services in the workplace, and use a trauma informed approach in doing this work.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Is your business ready for a harassment complaint?

Is your business ready for a harassment complaint?

We all hope that bullying and harassment won’t happen in our workplace, but with statistics showing that one in three workers experiences harassment—a complaint of bullying or harassment is possible anywhere. But are you ready to deal with one?

What is my obligation?
As an employer, you have a duty to investigate when a complaint of bullying or harassment is made. In fact, even if there is no complaint, as soon as you become aware of this type of behaviour, your duty to investigate is triggered. Worksafe BC requires all employers to have a policy in place to deal with harassment and bullying, and that all workers and supervisors receive training on recognizing, responding to, and reporting bullying and harassment. Investigations into complaints must be reasonable and undertaken in good faith. An investigation should be fair, impartial, and focused on finding facts.

 What happens if an employer doesn’t investigate an allegation?
Courts have shown that they are prepared to take this obligation to investigate quite seriously. In a recent case in Ontario, the judge awarded the worker aggravated damages in the amount of $50,000 due to the fact that the employer had ignored the plaintiff’s complaint and did not investigate. The plaintiff alleged that a coworker was abusive, harassing and unprofessional toward her over a prolonged period of time. While she notified the employer repeatedly of the conduct, the employer did not take any action. The judge commented specifically that, “…this neglect in the face of [the worker’s] heightened frustration and anxiety as the work environment became more toxic warrants aggravated damages.” (Bassanese v. German Canadian News Company Limited et al., 2019 ONSC 1343 (CanLII)).

Are you ready?
If you don’t have a policy in place, or you have not reviewed your policy for some time, now is a good time to consider doing that. If you are just getting started, an employment lawyer can help you draft a policy, and provide training for your employees to make sure you are in compliance with your obligations. If you become aware of an allegation of bullying or harassment, seek some advice right away. Don’t ignore the problem and hope it will go away on its own. As you can see, this approach can be costly!

If an investigation is necessary, an employer can investigate on its own (in house) or, if the complaint is serious or there are concerns of bias, the employer should engage the services of an independent, third party investigator. If you are conducting an investigation in house, you may want to seek legal advice to make sure that the investigation complies with your policy and legislation. An employment lawyer can provide advice about conducting investigations, and, at Forte Law, we are also experienced in acting as third-party investigators.

The best advice about harassment complaints is to be ready before one lands on your desk. With proper preparation, including a policy and training, you and your business can support your team, and avoid making headlines or defending legal actions.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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