Archived – Digest of Benefit Entitlement Principles Chapter 8 - Section 5
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8.5.0 Loss of employment, unable to resume an employment
We have already noted that, for the labour dispute provisions to apply, four well-defined elements must be present Footnote 1 . To the first three elements-the existence of a labour dispute at the claimant's place of employment and the resulting stoppage of work-is added a fourth link in the chain. That is to determine whether the claimant has lost employment or is unable to resume an employment because of this stoppage of work.
Despite its apparent complexity, this issue is not difficult to address. Everything rests on three basic concepts:
- loss of employment or unable to resume employment,
- relationship between this fact and stoppage of work,
- the claimant's status in this context.
8.5.1 Loss of employment
From the standpoint of entitlement to benefits, loss of employment basically refers to an interruption of earnings from employment Footnote 2 . This does not mean that an interruption of less than seven consecutive days is not a loss of employment. The terms used and the reasons invoked make little difference, whether in respect of a strike, leaving work or failing to show up for work, refusal to cross the picket line, lock-out or suspension.
In these circumstances, there is no denying that the employer-employee relationship may be affected by the existence of a dispute, especially if it degenerates into a protracted stoppage of work. Usually there is not a total breakdown in relations between the parties. In principle, each has an interest in reaching some common ground that may produce an eventual solution to the dispute. Most provincial codes as well as the Canada Labour Code include specific provisions guaranteeing the employee's right, with precedence over any other individual, to return to work when operations start up again.
Few stoppages of work amount to a definitive separation between the parties, in the form of resignation, dismissal or even lay-off, arising prior to or after commencement of a stoppage of work or even once the stoppage of work has ended Footnote 3 .
Loss of employment may also result from "bumping" based on years of seniority or postponing work to a later date, even where the total time worked according to the collective agreement is eventually honoured Footnote 4 . The fact that another job has been found immediately does not mean there has been no loss of employment.
The wording of the legislation relating to labour disputes Footnote 5 permits the taking into account of the loss of each and every employment, without consideration being given to the fact of whether the claimant was working at more than one job at the time when it was lost or that employment was continued in other jobs afterwards. This includes employment that a claimant was to become engaged in for a new employer at a definite date, but was not realized at that date because of a stoppage of work attributable to a labour dispute. The text equally applies to all previous employment that the claimant was unable to resume for the same reason Footnote 6 .
The employment at issue must nonetheless meet the definition found in the legislation Footnote 7 , which effectively eliminates self-employment, as there is no employer-employee relationship. As long as this employment falls within the definition, it may also include any employment worked in Canada, or overseas as well as employment that does not meet the minimum conditions regarding insurability.
8.5.2 Unable to resume an employment
Because the specific term "a claimant . . . unable to resume an employment, because of a work stoppage attributable to a labour dispute" appears in the legislation Footnote 8 , this claimant is subject to the provisions concerning labour disputes.
Accordingly a claimant, on leave when the stoppage occurred, who could not after a period of vacation, illness, injury or maternity, resume his or her employment because the stoppage of work continued, would be found to be connected to the loss of employment attributable to the stoppage of work. The disentitlement, should it be necessary, would be effective the date the claimant was to have returned to work Footnote 9 .
It must be said that establishing the connection was found to be more problematic in the case where the claimant was not able to resume employment after a leave of absence for union business Footnote 10 . Similar complications cropped up between casual workers, who were subject to recall and seasonal workers, of whom it was said in a well-known judgement Footnote 11 , had not lost employment at the beginning of the active season but, more so, the possibility of employment.
In order to eliminate all the ambiguity as to whether the provisions concerning labour disputes applied in a claimant's situation, it was considered necessary to insert in the legislation Footnote 12 a specific reference to "a claimant . . . who is unable to resume an employment". This establishes an equitable treatment of the claimant who has lost employment and the claimant who is unable to resume employment, when both are for the same reasons.
This does not mean that from now on in each case we must make the distinction whether the claimant lost employment or is unable to resume an employment. The fact is these two situations are covered by the same provision, and the decision, in either case, must be based on the same principles.
Therefore there is no objection that we continue to view the situation of the person who is unable to resume an employment at the end of a period of vacation, illness, injury or maternity, in the same way as the person who lost employment in these circumstances Footnote 13 . This approach has not been repudiated by the jurisprudence and therefore need not be modified. We may use the same approach for the person whom, after a period of quarantine or caring for a newborn child or a child placed for the purposes of adoption is unable to resume employment.
In respect of situations where the leave is of a longer duration, for example, for union business or working at another job, it is more appropriate to consider the question whether the claimant is unable to resume an employment. This approach should also be used where a claimant is unable to resume an employment on return or recall to work after a lay-off or at the end of a contract. The same could be said for the casual or seasonal worker whose return to work is prevented by the fact that there is a stoppage of work attributable to a labour dispute Footnote 14 .
This does not mean that all persons who have a possibility of being recalled by the employer during a stoppage of work automatically fall under the ambit of "claimants who are unable to resume an employment". At the outset it must be reasonably concluded that, had it not been for the stoppage of work, the employer would have taken back these workers at a given date or time, and consequently, in the absence of the stoppage of work, these workers would have been at their jobs. However, an undefined possibility or moral assurance of working during the stoppage, or the sole existence of a right of recall, is not sufficient to arrive at such a conclusion.
The employment to which we refer must necessarily be an employment that the claimant held in the past, without specifying that it is in the recent or distant past. It is not limited in any way to the employment that the claimant held immediately prior to his or her last employment or prior to the filing of the claim for benefits. This expression may even refer to an employment that, for one reason or another, the claimant has stopped working at during the benefit period and which was not eventually resumed because of a stoppage of work due to a labour dispute.
It must however be in respect of the same employer for whom the claimant has already held employment, without it necessarily being in the same occupation or even the same place of employment. The fact that a claimant could not, because of the stoppage of work, commence a job at a date provided by an employer, for whom he or she has never worked, does not fall within this category. What would be more at issue there is whether the loss of employment would be subject to the labour dispute provisions.
Finally, it must be emphasized that "a claimant who . . . is unable to resume an employment" also includes those persons who are prevented from resuming their employment because of a stoppage of work as well as those who decide, voluntarily or on their own initiative, in those circumstances not to resume their employment.
8.5.3 Loss of or unable to resume employment because of a stoppage of work
Many events in everyday life are linked by what is conveniently called the "domino effect", a kind of chain reaction by which one-event causes a second, which creates a third. The labour dispute clause has a similar effect with respect to three events: labour dispute, stoppage of work and loss of employment or being unable to resume an employment Footnote 15 .
As already noted, these three events must take place at the claimant's place of work, and there must be a cause-and-effect relationship between the labour dispute and the stoppage of work. The next step is to verify that the loss of employment or being unable to resume an employment is truly attributable to a stoppage of work caused by a labour dispute.
Loss of employment or being unable to resume an employment caused by a stoppage of work occurring somewhere else than at the claimant's place of employment is not covered by the labour dispute clause. The exception lies with those disputes that occur in several places at the same time, and where either of the situations may be attributable to a stoppage of work caused by a local dispute even if it has been provoked by a strike happening elsewhere Footnote 16 .
Loss of employment or being unable to resume an employment and a stoppage of work do not, of course, necessarily take place at the same time. Following the reasoning inherent in the labour dispute clause, this loss or inability to resume employment within the ambit of that clause must occur following the commencement of the stoppage of work, or must at the very least coincide with it. The issue then is whether this loss or inability is consecutive to an event associated with the dispute and the stoppage of work Footnote 17 or whether it would not have occurred at that specific time had there been no stoppage of work Footnote 18 . If the answer is yes, it is quite appropriate to conclude that a cause-and-effect relationship between these events indeed exists. Whether the relationship is direct or indirect is of little significance.
While the situation is far less clear when loss of employment or being unable to resume an employment precedes the stoppage of work, an effect cannot precede its cause. Consequently, a claimant whose loss of employment or being unable to resume it occurs prior to a stoppage of work is not covered by the labour dispute provisions Footnote 19 . Whether or not the loss of employment or being unable to resume it can be blamed on an imminent stoppage of work is of little or no significance.
Employees are often on leave at the time of a stoppage of work; relations with the employer are not definitively broken in such circumstances, even if the leave is unpaid and for whatever reason. A person who is unable to return to work once the activity for which leave was granted has come to an end is a person who either has lost an employment or is unable to resume an employment because of a stoppage of work if, of course, the stoppage is still in progress Footnote 20 .
Sometimes an employee's status at the time of the stoppage of work can be a source of problems. The case of a full or part-time employee, working on a temporary, permanent or probationary basis, generally poses no real problem. There is no difficulty linking the loss of employment or being unable to resume an employment to the stoppage of work from the time when, had such stoppage of work not taken place, the employee would have remained at work.
The situation of a casual worker is much more delicate. This situation must be determined in terms of the job history and the likelihood of continuing at the job had there been no stoppage of work Footnote 21 .
For an employee who is reinstated in the job following a grievance, the fact that the employee's status at the time of the stoppage of work was not known until several months following the stoppage is of no significance. Consequently, the ruling on loss of employment must be reconsidered in light of the new status, even if the claimant is not aware of this fact until after the stoppage of work Footnote 22 .
An employee whose job was scheduled to come to an end after the commencement of the stoppage of work for reasons unrelated to the dispute may be in a similar situation to an employee who has received final notice of dismissal effective after the beginning of the stoppage of work. The relationship between the initial loss of employment and the stoppage of work remains unchanged Footnote 23 until such time as the employer-employee links are deemed to be broken definitively Footnote 24 .
The cause-and-effect relationship between loss of employment, being unable to resume an employment and stoppage of work may also extend to two groups of employees working at the same place of employment. The possibility or the fact that the employer's action is illegal or unjustified changes nothing, no more than if the lay-off had been due to a lack of work.
8.5.4 Multiple disputes or stoppages
Several factors may complicate a labour dispute, including the number of parties actually involved. This often happens when a dispute involves an employer or an association of employers and several locals of the same union or even several unions. The first issue is to determine whether one or several disputes are underway at the claimant's place of employment.
Generally, there are as many labour disputes as there are collective agreements under negotiation. There is a single dispute when the major issues relate to a master collective agreement, when negotiations deal with the industry as a whole or when various groups of workers form a common front, creating for example a joint committee or even making the signing of each collective agreement an essential condition for the settlement of every dispute Footnote 25 . Where there is more than one dispute at the claimant's place of employment, the impact of each stoppage of work on the loss of employment or being unable to resume an employment in question must be identified.
When several unions are locked out by an employer, the consequent stoppage of work may be attributable to all of the disputes, and not simply to a single dispute Footnote 26 . The fact that one union is responsible for the event that brought about the lockout, or that this event occurred at another place of work, is of little importance.
One need only glance at the headlines of various daily newspapers to learn of major labour disputes such as those between the government of a province and its public sector employees, a municipal administration and its blue-collar workers, construction contractors and various building trades, and so on.
The situation can be illustrated on a smaller scale where blue and white-collar workers are negotiating with the same employer for the renewal of their respective collective agreements. To back up their demands, the blue-collar workers go on strike, and this results in some of the white-collar workers being laid off. It is necessary at this stage to decide if there is one complex dispute, in which both white and blue-collar workers are involved or distinct labour disputes. The question is important, specifically because the exempting conditions apply only with respect to the dispute which provoked the work stoppage, following which some white-collar workers were put out of work.
Let us use the situation of two labour disputes where an employer locked out the white-collar workers a few weeks after the blue-collar workers launched their own strike. The lay-off of some white-collar workers in the interval before the lockout was caused by the blue-collar strike and was no doubt related to the labour dispute provisions Footnote 27 . The white-collar workers in this case lost their employment due to a stoppage of work attributable to a labour dispute of blue-collar workers. It can even be said that they also could not resume their employment for this reason for each day that this stoppage of work was going on. Where it can be shown that they were not concerned with that labour dispute, those white-collar workers would likely not have any difficulty in satisfying the exempting conditions Footnote 28 .
The situation would be different from the moment when the employer, equally in dispute with the white-collar workers, decides to lock them out. From that point on, we could say that for those white-collar workers, who had earlier been laid off, they could not resume their employment due to a stoppage of work attributable to two labour disputes in progress. In this context it becomes more difficult for these white-collar workers to prove that they continue to meet the exempting conditions, as they have become parties to the labour dispute.
8.5.5 Lay-off prior to stoppage of work
The fact that a dispute is underway and a stoppage of work is imminent, when the lay-off of one or several employees takes place, may in some situations be due simply to chance and be unrelated to the employer's decision to dismiss part of its personnel. It may be the same when an employer cancels the fixed recall of a number of employees. It follows that such cases are in no way covered by the provisions dealing with labour disputes.
The same cannot be said when the lay-off or the cancellation of a recall decision is attributable to the existence of a labour dispute and to signs of an impending stoppage of work. This relationship may be the result of outside factors, such as a breach of the contract or postponement of orders by customers who fear that, given the circumstances, these will not be completed within deadlines, or who support a boycott organized by the union. Or it may be the result of internal considerations, in reaction to initiatives taken by workers, such as a work slowdown, or in anticipation of operational problems following an intentional breakage of equipment. It is not unusual in these situations for employees to be suspended or dismissed because of their involvement in such incidents, even prior to the stoppage of work occurring Footnote 29 .
Although the wording of the labour dispute provisions Footnote 30 refers specifically only to loss of employment or being unable to resume it as a result of a stoppage of work, the interpretation historically followed has been that these provisions may apply in anticipation of a stoppage of work. It is enough to show a cause-and-effect relationship between either of these events and stoppage of work, even if this is only impending.
The signs of this are often the numbers of days between the lay-off and the cancellation of a recall and the stoppage of work, as well as the fact that a strike mandate has been given to the union executive. The eventuality of such a stoppage of work in the short term may well prompt an employer to lay-off or to cancel the recall or the return to work. Indeed, the shorter the interval between the lay-off or the cancellation of recall and the stoppage of work, the more likely it is that these events are linked to the stoppage of work. It is imperative that the stoppage of work actually take place in order for a claimant to be disentitled to benefits, and such a disentitlement cannot take effect until the first day of the stoppage of work. When the lay-off or the cancellation of the recall has two originating causes, the issue is whether or not the imminence of the stoppage of work is the principal one.
Paradoxical as this approach may seem given the strict wording of the labour dispute clause, it still prevails in cases on this issue Footnote 31 . There appears to be a desire to preserve a degree of firmness in the application of the labour dispute provisions in order to avoid a double standard, depending on whether a worker lost employment or is unable to resume it immediately before or after a stoppage of work.
A new perspective on this question has come from a known, though isolated, judgment Footnote 32 , which is based on the timing of events and insists on the fact that a stoppage of work is essential and must precede the loss of employment contemplated by the labour dispute provisions. Even if this judgment is very much an exception to the interpretation adopted in a long line of cases, it may be significant where the lay-off takes place for a reason related to the special situation of one or several employees taken in isolation. In this quite clearly-defined context, the claimant who is laid off definitively, and on an individual basis prior to the stoppage of work, without any hope of being recalled, will not be considered as having lost employment because of the stoppage of work. The fact that the loss of employment was caused by the impending stoppage of work has no effect on entitlement to benefit in the circumstances. The same principle may be applied in the case of the claimant whose return to work with an employer on a fixed date was indefinitely cancelled, with no hope of returning, due to the imminent stoppage of work.
Aside from this specific case, precedence is generally given to the interpretation applied in most judgments, especially in cases where there are mass lay-off or cancellations of recalls before any appreciable stoppage of work. Usually these employees are involved or implicated in the labour dispute. To reject the application of the labour dispute clause simply because the loss of employment or being unable to resume it precedes the stoppage of work would go against the principle of neutrality mentioned earlier.
As for the employee who is suspended prior to the stoppage of work for activities connected with the dispute or for other reasons, this loss of employment cannot be considered definitive. The provisions of the labour dispute clause would thus apply, but only from the end of the suspension period, quite simply because it is at that moment that the loss of employment is considered attributable to the stoppage of work caused by the dispute, if this is indeed the case.
There is general agreement that based on what has been said above, it is inappropriate to apply the labour dispute provisions to a definitive dismissal-taking place before the stoppage of work. This is not the case when, after settlement of a grievance, an employee is reinstated and all rights are recognized retroactively. The labour dispute provisions apply in this case from the beginning of the stoppage of work in the same way as they do to all employees, even if the claimant's status as an employee was actually only defined several months later Footnote 33 .
8.5.6 Voluntarily leaving prior to stoppage
Strictly speaking, voluntarily leaving a job is not the same as lay-off, simply because it is the claimant who takes the initiative to break the links with the employer. The break is not dictated or imposed by the employer. The same may be said when a person decides not to go back to work at a given date.
A claimant's voluntary decision to quit employment or to not resume an employment while a labour dispute is underway or when a stoppage of work seems imminent may be in fact motivated by this or for totally independent reasons. In the latter case the labour dispute provisions should not be considered in ruling on these reasons.
The imminence of a possibly protracted labour dispute may lead a claimant to make certain decisions with respect to the future, based on an evaluation of the situation, personal criteria, and the claimant's position within the firm. For example, a claimant may voluntarily resign or not resume an employment prior to the stoppage of work because he or she believes that the strike will last a long time, or he or she does not support the union demands, or it is time to return to studies.
Whether such a sudden or considered decision has been taken in anticipation of a stoppage of work or for other reasons, one fact cannot be challenged: after this definitive resignation, the claimant is henceforth no longer an employee of the firm. How, then, can employment later be lost or not be resumed because of a stoppage of work attributed to a labour dispute? Rather, the employment has been deliberately lost or not resumed because of the anticipated stoppage of work and its consequences Footnote 34 .
At first glance, this approach appears to be inconsistent with a long line of cases which have, on the contrary, held that, where the claimant has left employment in anticipation of a stoppage of work, the loss of employment is attributable to such a stoppage. But is it in fact inconsistent?
It would be easy to say that the Federal Court of Appeal totally changed the traditional view of the question when it ruled that the previous approach contradicted not only the text of the labour dispute clause in its literal sense but also the very spirit of the provisions Footnote 35 . But this in fact is not the case. The judgment made certain distinctions, by clearly differentiating between loss of employment resulting from a genuine resignation and that related to a feigned departure.
The former is a case of real, genuine and individual resignation; amounting to a complete and definitive break in the employer-employee relationship. There is no reason to fear that benefit received might influence the claimant's behaviour in the dispute. By totally changing their status, such persons can never become strikers. They may thus avoid the provisions relating to labour disputes though not those concerned with voluntary quitting or refusal to resume work, as it was foreseen Footnote 36 .
In the latter case, the resignation is not irreversible because the employer-employee relationship is not totally broken; either the employee has not yet taken that final step, or the break is only superficial in that the employee is involved in picketing or other union activities. The same is true for mass resignations, which are usually only one of several pressure tactics used against the employer to force the granting of demands.
The employees' interests remain linked to the future of the business. Employment Insurance should in no way be used to assist employees who are on strike or who have an interest in the dispute, for this could skew the interplay of economic forces that may provide a solution to the labour dispute. In this context, the traditional approach continues to be justified in that the claimant has clearly left employment because of an impending stoppage of work without, however, breaking all links with the employer. It is the same when the claimant, voluntarily, and for these same reasons, does not resume a previous employment, without definitively breaking all links with the employer. Disentitlement to benefits takes effect from the first day of the stoppage of work, provided of course that such a stoppage actually begins.
How then should loss of employment be viewed when it takes place in the period between a claimant's feigned resignation (one that is actually linked to a labour dispute), and the commencement of the stoppage of work, which may never occur or which may fail to significantly disrupt the operations of a firm? The question could be considered from the angle of disqualification Footnote 37 ; it may however, create some problems of application in the context. And what of the worker who voluntarily, day after day, fails to report for work because of a dispute and an impending stoppage of work? Can we say that, on each of these days, the claimant is unable to find suitable employment? Obviously not, because employment is available with the employer and this worker chose not to take it. Such a situation is likely to justify disentitlement Footnote 38 for so long as the employee adopts this attitude to the employment, and until the stoppage of work occurs Footnote 39 . This principle also applies to the claimant, who voluntarily and for the same reasons, does not resume an employment without definitively breaking all links with the employer.
All things being considered, the labour dispute provisions will not apply to the person who can show that he or she has truly resigned his or her employment by completely separating from the employer before the commencement of the stoppage of work. In the case of a feigned or incomplete decision, the claimant will be disentitled because of a failure to prove availability during the period following this decision, up until the commencement of the stoppage of work.
8.5.7 On leave at time of stoppage of work
An employee who is on leave when the stoppage of work occurs can generally avoid the application of the labour dispute provisions until such time as the employee would normally have returned to work had there been no stoppage of operations. Only at that time does a cause-and-effect relationship exist between loss of employment or being unable to resume it and stoppage of work, unless of course the employee has been previously laid off during a leave for a reason independent of the dispute. If there is a disentitlement, it applies from the date on which the employee was to resume work.
Although it is generally possible to link the fact of being unable to resume employment after a period of leave to a claimant "unable to resume an employment", this question, in the case of certain kinds of leave where jurisprudence has historically confirmed this approach, will continue to be viewed in the manner of a "claimant who has lost an employment". This will be the case for vacation, sickness, injury or maternity leave Footnote 40 ; this could equally apply in the case of leave for quarantine or caring for a newborn or a child placed for the purposes of adoption.
Other forms of leave of a longer duration did not receive the same support from the jurisprudence. Thus, in the case of leave for union business Footnote 41 , the Court considered that failure to return to work once the reason for which the leave was granted came to an end, was not tantamount to loss of employment attributable to a stoppage of work. Due to the specific appearance of the term, "a claimant . . . who is unable to resume an employment", these particular types of leave fall within the labour dispute provisions Footnote 42 . From now on these situations will be considered under this approach.
Equally, a prolonged leave for the purposes of being engaged in other employment could also fall within this category.
Not infrequently, a claimant continues to receive, during the leave, remuneration from the employer that totally or partially compensates for loss of earnings during this period. This is especially true for vacation or sick leave for which, depending on accumulated leave credits, the claimant may receive full pay for a varying period of time. It may also be in the form of special remuneration to supplement training allowances received from other sources.
Where a stoppage of work is attributable to a labour dispute, unfolding events may lead an employer to stop remitting sums normally paid to employees on leave. This break in earnings constitutes a form of loss of employment caused by a stoppage of work attributable to a dispute. In such a perspective, the labour dispute provisions should be contemplated from the time this break in remuneration begins, even if the original period of leave has not fully expired Footnote 43 .
8.5.8 Recall to work
Whether their previous jobs were held on a regular, seasonal or casual basis, thousands of people temporarily without work still cherish the hope of eventually being recalled by their employer. For some, the period or date of recall is more or less determined each year, while for others, recall depends on current requirements.
In such circumstances, how should entitlement to benefits be considered when, at the pre-set or anticipated recall date, a stoppage of work caused by a labour dispute paralyses the firm's activities and thereby prevents reinstatement? Are these individuals unable to resume a previous employment and, if so, do the labour dispute provisions apply to these cases?
It must be recalled that before the specific appearance of a claimant "unable to resume an employment" Footnote 44 in the legislative text governing labour disputes, most of these cases were considered under loss of employment. One need only recall the situation of the seasonal workers Footnote 45 whose jobs, by definition, end each year at the end of the active season, or of the casual employees whose patterns of employment may infinitely vary or of the unemployed person who more-or-less may possibly be recalled Footnote 46 , to realize that the adjudication of these cases was a delicate matter.
The amendments that were made have cleared up the situation and now the entitlement to benefits will be considered under the provisions of a claimant "unable to resume an employment", which more correctly corresponds to the real situation of these claimants.
In this context, it is not enough that the worker unemployed at the time of the stoppage of work has only an undefined possibility of working during this stoppage, a moral guarantee; a simple right to recall may be sufficient in some cases, and in others, not sufficient Footnote 47 . In fact, to be considered as a claimant "unable to resume an employment" because of a stoppage of work the evidence must reasonably conclude that, had there been no stoppage of work, the employee would have been recalled and consequently have had employment had there been no stoppage of work.
Examples of this include: issuance of a recall notice by the employer or posting of a work schedule requiring the employee's services at a specific date; the fact that the previous termination of employment was only temporary and for a pre-set period and that the employee was to return to work at a specific date Footnote 48 or, finally, that the scale and regularity of employment reasonably indicate that the claimant would have worked during a stoppage of work Footnote 49 . By not following up on such an offer of employment, the employee is unquestionably unable to resume a previous employment Footnote 50 . Such situations in this context unequivocally call for the application of the labour dispute provisions.
The same reasoning applies when the claimant who has been laid off by an employer has nevertheless reached agreement about reinstatement or eventual return at a well-defined date or period, and for which the anticipated services could not be provided because of a stoppage of work attributable to a labour dispute Footnote 51 .
By the same way, the seasonal worker should not be considered as a claimant "unable to resume an employment" before we can reasonably conclude that the employer would have reopened at the beginning of the active season had there not been a stoppage of work Footnote 52 .
The cause-and-effect relationship between the fact of being unable to resume employment and the stoppage of work exists at the point in time where the employer would have recalled the employee had there not been this stoppage, and provided that the stoppage was continuing at that time. Until this date, there can be no disentitlement pursuant to the labour dispute provisions.
But the same approach cannot be taken in the specific case of an individual who is recalled to work by an employer simply because the latter needs some services due to the stoppage of work itself, without which there would have been no recall Footnote 53 .
8.5.9 Probationary employees
Probation is nothing more than a first step to permanent employment. Its purpose is to evaluate the employee's skills in terms of a firm's present and future needs. Probationary employment does not give a job any special characteristic, and it is in reality comparable to any other ordinary job Footnote 54 . Probationary employment interrupted by a stoppage of work is unquestionably loss of employment attributable to that stoppage Footnote 55 .
8.5.10 Part-time employees
The labour dispute provisions do not make any distinctions as to the forms or kind of employment that is subject to the regulations Footnote 56 . So long as there is an employment that a claimant has lost or is unable to resume because of a stoppage of work due to a labour dispute, the fact that this employment is full or part-time or on a regular or temporary basis, is of no significance.
It is ultimately more important to distinguish whether a part-time job has been performed continuously and according to a pre-set pattern, or whether it has been performed only on an irregular basis. While loss of continuing part-time employment constitutes loss of employment Footnote 57 , this may not be the case if the part-time job is very irregular, in which case it must be ascertained whether the employee was assured of recall and would have had employment had there been no stoppage of work Footnote 58 .
Where applicable, disentitlement will only be imposed from the date when the claimant would have worked had there been no stoppage of work, to the extent that the stoppage is still continuing. It should be noted that from that time, the number of days of disentitlement in a week is to be calculated in proportion to the part-time employment that the claimant has lost or is unable to resume because of a stoppage of work attributable to a labour dispute Footnote 59 .
8.5.11 Temporary employees
Termination of employment, whether permanent or temporary, is still loss of employment subject to the labour dispute provisions to the extent that it is attributable to a stoppage of work caused by a labour dispute at the claimant's place of employment Footnote 60 . The same principle applies when a claimant is unable to resume a permanent or temporary employment for the same reasons Footnote 61 .
The following are of no significance in determining whether loss of employment is attributable to a stoppage of work: the fact that the job has just started; is short-term or about to end; that the claimant was hired to replace workers on leave or was discharged on the eve of the stoppage of work; that this employment had been accepted during the off-season of a usual occupation; that the employment was obtained through a union travel card; that the claimant was a regular employee of another firm or a student whose job was only to last until the return to school.
Similarly, whether an employee has already been employed for longer than initially expected is irrelevant if the employment ceases because of a stoppage of work. An employee assigned to a factory where a stoppage of work occurs two days later has still lost employment because of a stoppage of work. The issue is whether the employee was at that job at the time of the stoppage of work and not how long he was to stay there or whether he should have been elsewhere.
It is easy to understand the importance of getting to the bottom of things and to establish clearly the reason for any loss of employment during a stoppage of work, especially in the case of an employee hired on a temporary basis. Even if this loss of employment occurs during a stoppage of work, that may be only pure coincidence. Whether or not there was a stoppage of work, this temporary employee would have been laid off for a reason independent of the stoppage of work, for example where a predetermined period of employment has come to an end, in which case the labour dispute provisions are not applicable.
The fact that some of the work mates may have lost or will eventually lose employment due to the stoppage of work, or that the claimant is actually financing the dispute through union dues assessed while employed, is not significant Footnote 62 .
Where a person was hired or recalled precisely because of the stoppage of work, the labour dispute provisions will not apply if this person loses or is unable to resume his or her employment because of the stoppage of work due to the labour dispute Footnote 63 .
8.5.12 Casual employees
A simple way to consider the matter would be to say that a casual employee is one who only works from time to time or, where casual services are provided on request geared to the needs of an employer confronted with uncertainties about the firm's operations or where there is no predetermined schedule of work.
It can be said that casual employees may find themselves with three basic situations during a stoppage of work. The first is that experienced by the employee working at the time of the stoppage of work, whose situation is comparable to that of a temporary employee Footnote 64 . Loss of a casual or intermittent job is loss of employment Footnote 65 . This reasoning has been applied to longshoremen, post office workers, substitute teachers and others who are on the job when a stoppage of work occurs.
On the other hand, a casual employee may have been unemployed at the time of a stoppage of work. Here, a distinction can be made between two situations: the person who would undoubtedly have worked at some point during the stoppage of work, had there been no stoppage; and the person who had only a vague possibility of being recalled during that period Footnote 66 . The labour dispute provisions will only affect the former.
8.5.13 Employees hired or recalled by reason of stoppage of work
An impending stoppage of work will not necessarily stop an employer from hiring staff. On the contrary, besides new employees hired to compensate for regular staff turnover, the employer may sometimes increase the work force to speed up production, build up inventories or complete major contracts ahead of schedule. The employer may also attempt to recall some employees who would not have been recalled in other circumstances in order to mitigate the anticipated or real impact of an eventual stoppage of work.
If the stoppage of work does take place, the fact that a claimant has lost an employment or is unable to resume an employment will affect both the employee hired or recalled because of the stoppage of work and the employee hired or recalled to meet the ongoing needs of the business. The only difference being generally that the latter is affected by the labour dispute provisions of the Act Footnote 67 .
In reality, it is not always easy to sort matters out and distinguish between one employee and the other, both of whom were hired or recalled for temporary periods shortly before the stoppage of work. The reason for hiring or recall must be established. Is it a case of a job created because of the impending stoppage of work?
Answering this question requires a good knowledge of the operations of the business, the movement of personnel and the reasons behind such movement. Some employers spontaneously admit that one or more workers have been hired or recalled in direct connection with an anticipated stoppage of work. Others see no reason to divulge part of their strategy during a dispute, and will even claim that the employee was hired or recalled on a permanent basis. In the latter case, how does the employer account for the employee being laid off once work resumes following settlement of the dispute, or for the fact that inventories have increased despite a decline in the industry?
The passage of time may help to show whether the employee was hired or recalled to perform regular work as a replacement for an individual on sick or maternity leave, for example, or whether it was to perform work that regular employees were refusing to do during a period of dispute. The employee may indeed have obtained a job–not lost it–because of an impending stoppage of work.
In most provinces, labour legislation does not prohibit "strike breakers" replacing employees involved in a stoppage of work. The hiring or recall of workers as "strike breakers" during a stoppage of work is clearly linked to it; the fact that they have lost employment or are unable to resume an employment, whichever is the case, does not render them subject to the labour dispute provisions.
Even if the fact that a strike may take place is known to the general public, this does not necessarily mean that every hiring is linked to this fact. One should not jump to a conclusion. Indeed, even if the claimant might initially have shown a valid reason for refusing work offered in such a situation, this does not exclude the application of the labour dispute provisions if the claimant eventually accepts genuine employment which is not related to a impending stoppage of work, and which the claimant subsequently loses or is unable to resume because of this stoppage of work.
It must again be recalled that employment is not considered suitable if it is arises in consequence of a stoppage of work attributable to a labour dispute Footnote 68 .
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