CUB 56933

KRINDLE, Hon.

The commission appeals from a finding of the board of referees that the claimant had shown just cause to voluntarily leave his employment.

The claimant was a long-term employee of New Flyers Industries. In March of 2002, the company offered an incentive package for employees to quit in order to save junior employees their jobs. The company gave notice that it intended to lay off 400 employees from within the bargaining unit and 100 from outside the unit.

The board made the following findings of fact:

(a) the claimant quit his job in order to protect a junior employee who was paid the same salary as himself;

(b) there was a workforce reduction program in force at the time;

(c) the claimant was directed by his employer, the union and the commission that if he took advantage of the workforce reduction program he would be eligible for benefits.

The commission argues that the information the claimant was given by his employer; the union and the commission was incorrect. The reduction, according to the commission, does not fall within the work-force reduction process set forth in the legislation and Regulations. Regulation 51 provides as follows:

51(1) Subject to the Act and these Regulations, but notwithstanding section 30 of the Act, a claimant who has left employment in accordance with an employer work-force reduction process that preserves the employment of co-workers may be paid benefits where

(a) the claimant accepted an offer to leave that employment voluntarily; and

(b) the employer has confirmed that the claimant's leaving resulted in the actual preservation of the employment of a co-worker whose employment would otherwise have been terminated in the course of the work-force reduction process.

(2) For the purpose of subsection (1), an employer workforce reduction process is a process

(a) that is initiated by the employer;

(b) that has as its objective a permanent reduction in the overall number of employees;

(c) that offers employees the option to leave employment voluntarily; and

(d) the elements of which, including the elements described in paragraphs (a) to (c), are documented by the employer.

[emphasis mine]

The commission argues that the lay-offs did not amount to a work-force reduction process because the employer did not have as an objective the permanent reduction in the overall number of employees. The employer stated before the board that it did not desire permanently to reduce the overall number of employees. Rather, the employer stated that it was trying to obtain government help and if it could secure government help, it might be able to bring its workforce back up. Further, argues the commission, the collective agreement between the company and the union provided for a two-year recall right to any laid-off employee. Given that fact, the commission says, these could not be seen to be permanent lay-offs.

The union representative points out that a "permanent" lay off or reduction of work force was not a possible articulation, given the wording of the collective agreement, for what was transpiring within the company. On the other hand, the lay-off in this particular case, while perhaps not permanent in the Oxford dictionary definition of the word, was clearly not seasonal, not recurring and not reasonably finite in its anticipated duration. It certainly could not be said that this lay-off was "temporary" in nature.

The board of referees considered the position taken by the commission and the same union in respect of the Bristol Aerospace reduction which occurred shortly before the New Flyer Industries reduction, a position that was used by the parties as a precedent for how to deal with the situation at New Flyer Industries. In the Bristol Aerospace situation nothing in the letter of understanding describes the reduction as permanent. And yet, the employees who took part in the program received benefits. Further, the union representative stated to the board, and the board appears to have accepted as a fact, that no manufacturing company that remains in business can predict permanency. The Bristol Aerospace situation in the spring of 2002 regarding a small number of employees was used by the board as an example of the inability to predict duration. The press-release of March 16th, 2002, speaking of lay offs to take effect on April 8th, 2002, states:

She said the staffing cut backs could continue until as late as June, but that it's difficult to predict how many more workers might be affected. "We could land a big contract that could change everything".

Having regard to the percentage of the work-force terminated at New Flyer Industries, to the nature of and reasons behind the terminations, to the nature of the employer's hopes for the future and on what those hopes were based, to the fact that the duration of the anticipated reduction in work-force clearly was not "temporary" and realistically was totally open-ended, it was open to the board of referees to find as a fact that the reduction was permanent. "Permanency" is a factual finding and must be determined contextually.

It was open to the board reasonably to come to the conclusions of fact which it did, particularly the fact that the reduction of work-force was permanent, despite the employer's hope that help might come from some level of government, despite the fact that the seniority provisions of the collective agreement provided for a two-year recall clause.

The appeal of the commission is dismissed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
February 16, 2003