Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 13

8.13.0 Termination of employment during a work stoppage

No matter what time of the year or what the field of activities, it is inevitable that most firms do experience some movement on the part of their work force. The same is true during a labour dispute and even more so when the stoppage of work lasts a long time. There are many reasons why employees, who were part of the work force when the stoppage of work began or who were to resume their employment during the stoppage of work, will not come back when the dispute is over. For example because the employment was temporary or about to terminate or there has been a lay-off, dismissal, resignation or retirement during the stoppage of work.

The question to be asked in this regard is why the claimant lost an employment at the beginning of the period of unemployment or why the claimant is subsequently unable to resume a previous employment, and not, why is the claimant unemployed at the present time. Once a claimant has lost or is unable to resume employment for the reasons in question ^{Footnote 1} , he or she is disentitled to benefit.

An exemption is possible only when one of the two circumstances set forth in the legislation ^{Footnote 2} apply. This is so even if, without the stoppage of work, the claimant in any event would have lost employment for another reason ^{Footnote 3} .

This, however, does not exclude the possibility that the claimant will satisfy the exempting conditions ^{Footnote 4} and that disentitlement will thus not be imposed, even though the claimant has lost an employment or is unable to resume a previous employment due to the stoppage of work. It is possible for the disentitlement to lose its effect if the claimant subsequently proves the existence of these exempting conditions during the stoppage of work, in which case the disentitlement terminates on the day prior to the fulfillment of these conditions ^{Footnote 5} .

8.13.1 Complete and final severance of the employer-employee relationship

For the claimant who is not entitled to benefits pursuant to the labour dispute provisions ^{Footnote 6} , there is no automatic re-entitlement merely due to the fact that the employer-employee relationship has been completely and finally severed ^{Footnote 7} .

While there may be a complete and definitive severance of the employer-employee relationship, it is not the rupture itself that is the deciding factor leading to entitlement, but rather it is the absence of direct interest, participation and financing in the labour dispute on the part of the claimant ^{Footnote 8} .

Moreover, such a separation is not necessary when the claimant otherwise meets the exempting conditions even while still maintaining to some degree the employer-employee ties; on the other hand, there could well be a complete and definitive separation but the direct interest, participation or financing continue to be present. One of the questions to determine is whether the severance is complete and final and this is not necessarily the case, even if the employee has in fact informed the employer of the intention to resign or if the employer has notified the employee of the dismissal. The severance may be no more than temporary and may last only as long as it would take for the dispute to be resolved and operations to resume.

A number of indicators tend to confirm whether the severance is final:

• termination of individual employment,
• payment of amounts due on termination of employment,
• loss of all rights of recall and employment-related benefits,
• the employee's status in the company,
• the reasons for severance given by the employer (e.g. incompetence, misconduct not related to the dispute) or by the claimant (ill health, removal).

These must not be the maneuvers and intimidation practices that occur in labour disputes, or actions whose sole purpose is to create entitlement to benefit.

Conversely other indicators cast doubt on the complete and final nature of the severance, such as:

• the simultaneous resignation or lay-off of several workers,
• a long period of employment tied in with substantial benefits (such as a pension),
• the fact that neither the employer nor the employee have taken appropriate steps to make the termination of employment final, or even,
• the claimant is still a member of the union in dispute with the employer ^{Footnote 9} .

Here again, even if the termination of employment bears all the hallmarks of a final severance, it can happen that the claimant remains directly interested in the outcome of the dispute or continues to be involved. One such case, for example, would be that of an employee who used all avenues of recourse to insure that his or her return to work is possible, or where because of the reasons giving rise to the separation, it is highly likely that this worker's return forms part of the back-to-work agreement ^{Footnote 10} .

It cannot be said in these circumstances that the claimant is not directly interested in the labour dispute as long as there is the possibility that such a worker, dismissed during the course of the stoppage of work, will subsequently return to work as a result of a return to work protocol or as a result of a grievance filed against the dismissal. The fact that, following either the termination of the stoppage of work or a judgment issued on a grievance, a worker will not be reinstated, does not change the direct interest in the labour dispute that the claimant had before the final decision concerning the claimant's status with that enterprise had been known. In such a case, the disentitlement will not be retroactively terminated to the date of the dismissal.

It can also happen in the case of a dispute that has a significant impact on such industries as construction or logging, that an employee, who has been principally employed in this occupation by several employers in the course of a year, and whose working conditions are usually subject to general rather than to local agreements, decides to quit employment with a specific employer in the course of a generalized stoppage of work in the industry. Even though such a termination of employment may prove to be final, the employee nonetheless remains directly interested in the outcome of the dispute affecting the industry and may also continue to finance and participate in the dispute. Unless the employee has also decided to no longer work in this industry (such as for reasons of retirement, health or career change), it cannot be concluded that all the exempting conditions were met.

Participating or financing, like direct interest, do not necessarily cease with the termination of employment, even where the severance proves to be final. A claimant may for one reason or another continue to participate in the dispute or finance it. In either case the exempting conditions are deemed not to be met ^{Footnote 11} .

8.13.2 Temporary employment or employment about to terminate

Even when the employment in question is strictly temporary ^{Footnote 12} , with its duration known in advance, it must not be taken for granted that the claimant meets the requirements of the exempting conditions ^{Footnote 13} on the presumed date. Depending on the circumstances, there are many unknowns, including obviously the fact that there is a stoppage of work attributable to a labour dispute, and these may modify the data thereby advancing or postponing the originally set date of departure.

Due to operational delays caused by the stoppage of work, it is possible that the employer will attempt to extend an individual's period of employment, or to postpone the planned lay-off date because of the anticipated need for the employee's services when operations are to be resumed. Neither is it uncommon for the temporary employment to be extended because the employer needs staff to replace an employee who was supposed to return from sick leave but was unable to do so, or because the employer feels that this is a skilled worker whom the employer wishes to retain with a view to a permanent position in the future.

Some temporary employees also retain on occasion a right of recall, despite the stoppage of work, under the provisions of a collective agreement, or an agreement or a contract of service, which is often the situation in the case of seasonal workers.

We must therefore conclude that the mere possibility or a simple statement to the effect that the employment was in any event about to terminate in the near future, had the stoppage of work not occurred, is not by itself sufficient to state beyond a shadow of doubt that the employment would have terminated during the stoppage and that there would have been a complete and definitive severance of the employer-employee relationship, in the way required by the exempting conditions ^{Footnote 14} .

A worker in this situation therefore cannot evade disentitlement on these grounds alone ^{Footnote 15} , nor be exempted from it unless it is proven that at a precise date there is, on his or her part, an absence of direct interest, participation and financing ^{Footnote 16} .

Finally, term employees discharged on the eve of a stoppage of work attributable to a labour dispute could be exempted from disentitlement to benefit if they suffered a complete severance of the employee-employer relationship ^{Footnote 17} . Such an eventuality implies that the severance is complete and final, not of a temporary nature ^{Footnote 18} , and that there exists no recall rights, promise or pattern of employment that guarantees that they will be rehired or are almost certain to be rehired once the dispute is settled.

8.13.3 Dismissal

Unless it is for reasons that have absolutely nothing to do with the dispute (such as incompetence or misconduct), it is rare for a notice of dismissal issued by an employer during a labour dispute to be final. Such dismissals generally form part of the pressure tactics designed to expedite the settlement of the dispute by deliberately targeting certain groups of workers, or as a repressive measure aimed at union militants who have also been identified as troublemakers or as the instigators of acts of vandalism.

Apart from certain special instances or where there is a discontinuance of business or a permanent restructuring ^{Footnote 19} , it cannot be determined prior to the resumption of operations whether the dismissal is permanent and whether the employer-employee relationship ^{Footnote 20} has been completely and definitively severed in the way required by the exempting clause of the labour dispute provisions ^{Footnote 21} . This is also true when a worker who has been dismissed lodges a grievance or takes advantage of other avenues of appeal against the dismissal ^{Footnote 22} .

Disentitlement must be maintained ^{Footnote 23} unless the complete and definitive severance of the employer-employee relationship has occurred in a way that the worker no longer has a direct interest in the dispute, is not participating in it or financing it ^{Footnote 24} .

8.13.4 Resignation

It is to be expected that some employees do not return to work following a stoppage for many reasons, either because they have found more interesting or better-paid employment, because they have decided to go back to school or to change their career. Regardless of the reason, the result is that the worker has submitted a resignation to the employer during the stoppage or which is to take effect during the stoppage.

The intention to resign is not by itself sufficient, nor is the fact of resigning for personal reasons or as a mass movement to exert pressure on an employer and affect the outcome of the dispute. If, on the other hand, the resignation is genuine and is formally submitted to the employer, it may result in a complete and definitive severance of the employer-employee relationship ^{Footnote 25} . One shall then consider the possibility of terminating the disentitlement from the date the resignation becomes effective, provided that for certain the claimant proves that there no longer is a direct interest, participation or financing of the dispute ^{Footnote 26} .

In industries in which negotiations are conducted centrally and the results are applied to the entire industry, the fact that the worker submits a resignation to the employer during a stoppage of work which is having a substantial impact on the industry is not sufficient to cancel disentitlement. The worker must in addition prove that he or she has left the industry in question ^{Footnote 27} .

8.13.5 Retirement

When an employee takes retirement during a stoppage of work, disentitlement terminates on the day before the claimant officially retires. It is of little consequence whether the retirement is voluntary or not, as long as it is determined that the relationship between employer and employee has been definitively severed ^{Footnote 28} , so that the claimant has no further direct interest, participation and financing in the labour dispute ^{Footnote 29} .