CUPE Local 4400 v. Toronto District School Board
Arbitrator confirms that employees with recall rights are not “deemed terminated” after a lay-off of 35 weeks or more
In a decision dated June 29, 2017, Arbitrator Brian Sheehan clarified the rules around how to calculate termination pay for employees who have been recalled after a layoff of 35 weeks or more.
The Employer argued that a layoff of 35 weeks or more results in a deemed termination for the purposes of termination pay entitlements under the Employment Standards Act. It argued that, as a result, termination pay should be based only on the length of the employee’s service following the recall.
The Employer relied on the Ontario Court of Appeal’s decision in National Automobile, Aerospace Transportation and General Workers Union of Canada (C.A.W.-Canada), Local 27 v. London Machinery Inc., which found that after a layoff of 35 weeks or more, an employee holding recall rights could elect to be terminated from his or her employment and receive their termination and severance pay at that time, in exchange for giving up their right to recall.
Arbitrator Sheehan rejected the Employer’s argument. He confirmed that the right to elect to be terminated does not result in a “deemed termination.” He noted that, “such as result would seem to be fundamentally at odds with an intended goal of the notice of termination/termination pay provisions, whereby the amount of notice of termination/termination pay an employee is entitled to increases with the employee’s years of service.”