First “Single Employer Policy” Arbitration Case Has Promising Results for Unionized Employers

Since the start of the pandemic, many employers have been imposing “single employer policies” that restrict the ability of employees to work at secondary jobs. This has been motivated by legitimate concerns from Agencies and public health that employees who work in multiple locations can be vectors for transmission into congregate living settings. Given the unprecedented nature of the COVID-19 pandemic, until recently there has been little guidance from arbitrators or courts on whether these policies were permitted. However, we now finally have a case that provides some limited guidance on this subject for unionized workplaces.

In CUPE, Local 3513 v Breton Ability Centre, 2020 CanLII 93886, a Nova Scotia labour arbitration, Arbitrator Richardson found a single employer policy to be a reasonable exercise of management powers. However, they explicitly left undecided whether a similar policy would be permitted much later in the pandemic when more was known about the transmission of COVID-19.

The agency, Breton Ability Centre, provided congregate care to persons with intellectual and physical disabilities. The policy had been put in place for one month at the start of the pandemic and was ended once Nova Scotia got its first wave well under control. The policy prevented all other secondary employment, requiring an employee to stop working elsewhere or go on an unpaid leave of absence. The union grieved on behalf of the employees who had lost income.

The Arbitrator started from the proposition that union employers generally cannot dictate what an employee does in their free time, including working at other jobs. On that basis, employees generally have the right of the employee to work for another employer. However, the COVID-19 pandemic was not the ordinary course. When the policy was adopted, it was the early days of the pandemic and the consensus was that the primary source of infection was community spread. Residential homes for vulnerable people were particularly vulnerable to this. Moreover, the employer had obligations under the Nova Scotia Occupational Health and Safety Act to protect staff and people supported in the residential facilities. The precaution of requiring work in a single home was reasonable when framed as a temporary measure based on those facts and the knowledge of the time.

However, the Arbitrator warned that knowledge of COVID-19 had evolved since the start of the pandemic. A rule like this one might no longer be reasonable in a later COVID-19 wave or in different circumstances (though he did not say it would not be reasonable – and the issue was left undecided).

Despite finding that the policy was reasonable, the arbitrator did find that the employer had breached the collective agreement because it had not consulted with the union before implementing it (a requirement in those parties’ collective agreement). However, since there was no evidence that this consultation would have changed the policy, the only remedy was a declaration that the employer had breached the collective agreement. Otherwise, the policy was reasonable and upheld.

This case carries a number of lessons for Ontario.

  1. In normal times, a unionized employer generally cannot unilaterally dictate where else an employee works.
  2. In the right circumstances of enhanced risk and knowledge of those risks, employers can nonetheless impose unilateral blanket restrictions on secondary employment. It is implied that where other methods would accomplish these same precautions, it will not be reasonable. But at least at the start of the pandemic, this was a reasonable response to the risk.

We note that this case’s circumstances are distinguishable from our own in Ontario. Unlike Nova Scotia during the first wave of COVID-19, Ontario has been weathering a very heavy second wave of COVID-19 that is much more serious than what Arbitrator Richardson was considering in this case. Moreover, use of alternative methods has not themselves prevented this heavy second wave. We expect that the justification for single employer policies would be even stronger in our case. However, that may change if Ontario moves into a period of lower community risk.

Employers who impose these policies should ensure that they are following all other obligations in their collective agreement (such as obligations to consult on new health and safety policies).

We would note that this case does not necessarily provide guidance for non-union employers who impose or want to impose single employer policies.

PooranLaw will continue to monitor legal developments related to single employer policies. In the meantime, if you require legal assistance in drafting these policies, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.