THE EMPLOYERS' EDGE
YOU DON’T HAVE TO GO HOME, BUT YOU CAN’T WORK HERE: DIVISIONAL COURT UPHOLDS LAYOFF OF EMPLOYEE WHO WAS BANNED FROM THIRD PARTY WORKSITE
Employment relationships can be difficult to manage on their own, but often become more complicated where they engage the interests of third parties. For example, what happens if an employee is ready, willing and able to report for work, but is being prevented from doing so at the insistence of a third party? This was the situation recently before the Divisional Court in Labourers’ International Union of North America, Local 183 v GDI Services (Canada) LP, 208 ONSC 1018.
Facts
The employer, GDI Services, contracted with Cadillac Fairview to perform cleaning services in one of its office buildings. The union’s bargaining rights with GDI were exclusive to that location and did not extend to other properties owned by Cadillac Fairview. The commercial agreement between GDI Services and Cadillac Fairview contained a clause requiring GDI to replace any personnel whose performance or conduct Cadillac Fairview determined to be unsatisfactory.
On November 20, 2016, Cadillac Fairview directed GDI to remove the grievor from scheduled work at the building because of a report of “unacceptable behavior” to building security. In response, GDI suspended the grievor with pay while it reviewed the situation. Cadillac Fairview eventually revoked the grievor’s access to the worksite on an indefinite basis. From GDI’s perspective, the ban prevented the grievor from performing any bargaining unit work, so the grievor was placed on an indefinite lay-off. At no point did GDI conduct its own investigation of the allegations. Rather, the lay-off was implemented because of a lack of available work for the grievor and the company did not consider it disciplinary. The union grieved both the suspension and the lay-off.
The Arbitrator’s Decision
At arbitration, the union argued that the just cause provision of the collective agreement prevented GDI from relying on Cadillac Fairview’s site ban without establishing that the ban was justified on a just-cause standard. GDI relied on a contrary line of cases upholding an employer’s ability to lay-off employees in the face of third-party site bans, except where there has been collusion to avoid the just-cause standard, or where the employer disciplines an employee as a result of third-party allegations it had not independently verified.
Arbitrator Gray agreed with the Employer, finding that the just cause provision provided no guarantee that bargaining unit work would be available to employees, nor that the availability of such work would be immune from circumstances outside the employer’s control. Moreover, given the bargaining history between the parties, there was no reason for the union to believe that Cadillac Fairview had ever ceded its right to control entry to the property at issue. Finally, without a proper work assignment, it was appropriate for the company to consider the grievor to be laid-off, and treating them accordingly was not a disciplinary response requiring just cause.
The Divisional Court’s Decision
The Divisional Court upheld Arbitrator Gray’s award, which it characterized as a rational and internally coherent decision to follow one established line of cases over another. In reviewing that decision, the Court noted that its role was not to resolve the existing arbitral disagreement on the matter once and for all, but to determine whether the Arbitrator’s award was reasonable in the circumstances. To that end, Arbitrator Gray’s decision was transparent, intelligible and consistent with a well-established line of cases. According to the Court, the existence of a contrary line of cases was not surprising given the compelling interests at stake for either side, and Arbitrator Gray reasonably decided that the employer’s line of cases was applicable in the circumstances.
Conclusion
It is clear from the Divisional Court’s decision that any third-party site ban case will need to be considered on its own facts. The outcome could be affected by a number of considerations, including: specific collective agreement language, the relationship between the third party site operator and the employer, the actions of the employee and the extent of any investigation or disciplinary action taken by the employer among others. The case is also a good reminder of the various kinds of conflicts that can arise for any employer attempting to balance its relationship with customers, employees and bargaining agents on and off of company property. If you are looking for advice on striking the right balance between these often competing obligation, then CCPartners is ready to help.
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