Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 4

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8.4.0 Stoppage of work

This concept is of paramount importance. There must be a stoppage of work for the labour dispute provisions to apply Footnote 1 . The end of a stoppage of work is one way of terminating a previously imposed period of disentitlement Footnote 2 .

It is important to be aware that, virtually from day to day, the application of the labour dispute provisions will depend on the development of the stoppage of work, and whether it occurred on one or several specific days. This is very much a "day" concept, of particular importance where there are irregular stoppages of work, as for example during sporadic strikes and rotating walkouts.

The issue, then, is whether the operations of a business or a given place of employment are continuing normally day after day despite the proven presence of a labour dispute. This may be rather difficult to determine when, for example, there is a work-to-rule, a partial slowdown, or when essential services are being well maintained.

Everything depends on what is meant by stoppage of work. It is tempting to adopt the view that a stoppage of work takes place once the work that the employer offers and wishes to have performed is not carried out or completed because some of the employees have stopped working. But it is far from obvious that there is a stoppage of work when only one or several employees within a large group of workers withdraw their services.

When the time comes to apply this apparently simple question, major hidden difficulties are revealed.

8.4.1 Stoppage of work defined

Since the Act does not define "stoppage of work" Footnote 3 , the term should be given its ordinary meaning. It is not to be confused with labour dispute, of which it is only one manifestation Footnote 4 .

A stoppage of work within the context of a labour dispute cannot be defined in terms of the work of individual employees, but rather by referring in general to what constitutes the normal operations of a business Footnote 5 . The latter include not only production departments, but also office work, maintenance services, and so on.

A stoppage of work refers to a breakdown in the normal operations of a firm or to a change in the usual delivery of services as a result of a reduction in operations and in the number of employees. The fact that activities continue elsewhere will be of no consequence as we are concerned with the activities of the premises where the claimant worked Footnote 6 .

A stoppage of work does not refer only to a strike or lock-out Footnote 7 . It may also be used to refer to production slowdowns, concerted refusals of work, mass absenteeism, walkouts, suspensions, dismissals and shutdowns.

Even lay-off resulting from the dispute may be deemed to cause a stoppage of work or help make a partial stoppage of work more widespread. Other examples include suspension of the night shift and a refusal to work normal overtime.

In one specific case, a shutdown due to vandalism and sabotage was considered to be a stoppage of work, even for the period preceding the official lock-out Footnote 8 .

Not resuming work after a general lay-off or at the beginning of the active season could also designate a stoppage of work if it is established that activities would normally have resumed at a given time. The delay in resuming the normal activity at this very moment may be seen in these circumstances as a stoppage of the normal activity Footnote 9 .

To conclude, the existence of a stoppage of work depends on the impact of the labour dispute upon the normal operations of the business Footnote 10 . If the dispute has a marked effect on these operations, then there is a stoppage of work. There is no requirement that this stoppage of work be generalized throughout the firm Footnote 11 . The stoppage may even be confined to a certain number of employees, or to a single operation, so long as it has some significant impact in terms of a slowdown or change of normal operations carried out by this more limited group of employees Footnote 12 .

Clearly, a walkout that has only a negligible impact on the operation of a group does not meet this definition of stoppage of work. However, it does suggest that claimants who willingly participate in this partial strike can hardly prove they are unable to find suitable work. Such situations arise, for example, during the period proceding a generalized stoppage of work.

8.4.2 Scope of work stoppage

The existence of a labour dispute does not necessarily imply a sudden halt to all operations of a given firm, without any preliminaries. There may be a full scenario of measures and events related to negotiations and the willingness of the parties to reach a concrete agreement.

The alert observer will no doubt have noticed that nowhere in the Act is there any yardstick that measures a stoppage of work, something that suggests that any stoppage of work whatever its scope, fits the definition. This is not the case for the approach generally adopted has been to require an appreciable reduction in the normal operations of a firm before reaching any conclusion as to the existence of a stoppage of work within the terms of the labour dispute provisions.

Reference has often been made to the business as a whole in order to measure this reduction in operations; however, at other times this has been confined only to employees on strike, to a single department or service within a firm or to employees of a single bargaining unit Footnote 13 . It is easy to imagine how a dispute between the employer and a specific group of workers can disrupt the activities of this group and yet not significantly affect the operations of the business as a whole. Does this mean that there is no stoppage of work? Certainly not. Rather, a total stoppage of work or a marked reduction in work in any major department of a firm constitutes a stoppage of work, no matter whether this involves production or support services, such as administration or maintenance. This may be the case even if a single activity within a department is interrupted, or if other operations of the business continue more or less normally despite the stoppage of work.

Depending on whether or not the dispute and stoppage of work have repercussions on the entire firm or only on specific operations, the reduction in operations attributable to the dispute can be measured against the entire firm or only those operations affected by the labour dispute.

Among the many indicators that individually can reflect a business's level of operations, there are two main indicators that have been established and used historically to determine whether a stoppage of work has occurred. First in importance is the production of goods and services in terms of both quality and quantity. Even if, from a quantitative standpoint, a near-normal production level is maintained, there is still a stoppage of work if there is an appreciable decline in quality. For example, the replacement of live TV or radio broadcasts by films and pre-recorded shows represents a lower quality of production; however, a change from local to network broadcasting is not considered a stoppage of work.

The number of employees still at work is also a determining factor. Although it is not the sole and absolute test, it generally corresponds to the level of production. The level of income of the business, however, is not an element to be considered.

There is evidently a significant reduction in the normal activity where the production of goods or services has completely ceased or where there are no longer any employees at work. However, how does one judge the situation where the presence of a dispute influences the drop in production or in the number of employees at work, but there is not yet a total interruption. At what moment was there a reduction in the normal activity that corresponds to a stoppage of work?

This question is analogous to the one we ask later when, in a given situation, we must know whether there is, or is not, a termination in the stoppage of work. This one, is linked to the same reality as the others, the level of employees at work and the level of the production of goods and services of a business or a group of workers, as opposed to what would be their normal level had there not been a labour dispute and a stoppage of work.

The regulations that define what constitutes the termination of the stoppage of work appear quite naturally therefore to be the avenue to resolve the delicate question of when the stoppage of work occurs and continues. The stoppage of work ends, according to the regulation, when the number of employees at work and the activities in respect of the production of goods and services represent at least 85 percent of their normal level Footnote 14 . If this minimum of 85 percent is not attained in one or the other case, the stoppage of work does not end, which in other words, is to say that the stoppage of work continues to exist.

When determining the commencement of the stoppage of work, it appears quite justifiable to use the reverse of the 85 percent rule, i.e., a reduction of more than 15 percent of the work force or activities; although on the basis of a strict application of the law, it cannot be systematically applied Footnote 15 . There must be flexibility in its application as in a given situation there are indicators which reveal an appreciable stoppage of work, such as a significant reduction in the production of goods or services or in the number of employees at work as compared to the normal situation Footnote 16 .

There may be occasions, however, whether due to exceptional or temporary measures that, in spite of the dispute, the employer succeeds in maintaining or resuming a normal level in terms of the number of employees at work or in the activities related to the production of goods of services. What then will be determined is what would have been the actual situation in the absence of these exceptional or temporary measures. We may conclude that a stoppage of work occurred in the case where, in the absence of such, there would have been a significant reduction in the number of employees or in the activities related to the production of goods or services when compared to the normal situation.

8.4.3 Cause-and-effect relationship between labour dispute and stoppage of work

The attentive reader of the Act will quickly understand the meaning to be given the word "attributable" which falls between "stoppage of work" and "labour dispute" Footnote 17 ; this word undoubtedly establishes a cause-and-effect relationship between labour dispute and stoppage of work. Indeed, the labour dispute provisions specifically contemplate a stoppage of work whose existence is attributable to a labour dispute.

Besides the fact that in this context a stoppage of work cannot exist without its cause Footnote 18 , this relationship absolutely must exist at the claimant's actual place of employment. A stoppage of work due to a dispute at another place of employment does not meet this condition Footnote 19 unless that dispute has itself provoked a dispute at the claimant's own place of employment.

When there is a generalized dispute at several places of employment for example in the construction industry or in public transit, the stoppage of work must be distinctly established for each place of employment. The stoppages may occur at different dates depending on the actual situation at each of these places. The fact that it is the one and same dispute does nothing to change that.

When a stoppage of work arises during a labour dispute, the cause-and-effect relationship is a logical deduction unless some other explanation for the situation can be proven. The employer's interest in temporarily closing the business if such a cause-and-effect relation is established is of no significance Footnote 20 .

This relationship is all the more obvious when the stoppage of work takes the form of a strike or lockout; by its very nature, this type of event is necessarily linked to the existence of a labour dispute. The fact that a lockout was declared the day before the employer shut down operations, only to reopen two days later with a reduced labour force, does nothing to negate this relationship. Every other form of stoppage of work is also attributable to a labour dispute where it results from earlier negotiations; however, the lack of negotiations is not a crucial factor.

The link between the stoppage of work and the dispute need not be direct, so long as the stoppage of work can be said to be an event related to the dispute or that, had there been no dispute, the stoppage of work would not have occurred. The latter is true even when the stoppage of work is provoked by others, and not by the employees or the employer.

Without formally denying the existence of a labour dispute, some have linked work stoppages to causes independent of the dispute: the economic situation, the impending move of the business, overproduction, seasonal market fluctuations, weather and even natural phenomena. Here, as elsewhere, the relevant facts must be examined in reaching a decision; there is no problem whatsoever with such claims where it is established that, had there been no dispute, the firm would have shut down in any case Footnote 21 . But it is important to recall that in many disputes not everyone plays by the rules. With action and reaction, demand and resistance, threat and counter-threat, it is always appropriate to ask where reality actually begins, and on what objective and undisputed facts conclusions can necessarily be based Footnote 22 . The mere fact that an employer takes advantage of a stoppage of work to prepare to move operations or to make renovations is not conclusive.

Some may claim that the stoppage of work has been caused by lay-off resulting from a shortage of work. Here it is important to go beyond the rhetoric and the events themselves and to clarify whether the shortage of work as such resulted from the labour dispute or if lay-off would have taken place in any case. When rumours of a strike result in fewer orders and thus provoke numerous lay-offs, the resulting stoppage of work is deemed to be attributable to the dispute.

Generalized absenteeism under the pretext of illness is sometimes used as a strategy during a labour dispute. Similarly, the claim that a stoppage of work was provoked by acts of vandalism is of no help where the sabotage is attributable to the dispute.

When there are two causes for the stoppage of work, the issue then is whether the dispute is the principal cause. Generally a subsequent event will not disturb the cause-and-effect relationship between the dispute and the original cause of the stoppage of work, unless it renders the dispute of secondary importance. This subsequent event then becomes the principal cause of the stoppage of work; examples include fires or natural disasters. Even if it is established that the original cause of the stoppage of work had nothing to do with the dispute, the fact that, because of dispute, there is a delay in the return to work following a period of lay-off or at the beginning of the season, is considered as an event that constitutes a stoppage of work attributable to the dispute Footnote 23 .

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