In Toronto District School Board v. CUPE Local 4400, the CUPE Local 4400 (the Union) brought forward grievances arising from the transition of the Toronto District School Board (the Board) employees to remote work due to the COVID-19 pandemic. In a decision released on April 9, 2021, Arbitrator Eli Gedalof dismissed the grievances and concluded that the Board reasonably exercised its management rights during the transition to remote work.
On March 12, 2020, the Government of Ontario began to close all public schools in the province, with closures and remote learning eventually extending to the end of the school year. During the 2020-2021 school year, the Government of Ontario mandated schools to open and close multiple times. Due to the school closures, many Board employees were obligated to work from home.
The Union's position
The Union argued the Board should reimburse its employees for their out of pocket expenses they incurred while transitioning to remote work. These expenses range from $20/month to $1,000 and include office supplies, furniture, technology, internet and utility expenses. The Union argued that the Board's failure to reimburse the members' out of pocket expenses was an unlawful restriction on its members' compensation and an unreasonable and arbitrary exercise of its management rights, which was inconsistent with the collective agreement and the Employment Standards Act, 2000 (ESA). Further, the Union argued the Board had been unjustly enriched by passing its operating expenses to its employees. They also argued that the Board had imposed technological changes without giving proper notice and that the Board had altered the terms and conditions of employment and consequently, breached seniority rights.
The Board's position
The Board argued there was no legal basis in the collective agreement, the ESA, or in equity for reimbursing out of pocket expenses incurred due to remote work as the circumstances were not under the Board's control. In April 2020, the Board issued a Reimbursement Policy to manage reimbursing employees for expenses, which provides for employees to obtain pre-approval for expenses. The policy includes the following:
- Learning supplies or courier costs incurred after April 16, 2020 will not be reimbursed;
- Purchases of office supplies or computer accessories that are essential to staff's remote work arrangement will need to be reviewed on a case-by-case basis to determine eligibility for reimbursement. Staff must request pre-approval from their supervisory officer before making the purchase;
- These purchases are only permitted if it is considered an essential item for the work they are performing, and the supervisory officer pre-approves this purchase and
- Out of pocket purchases for any technology, equipment or computer peripherals (including headset or document cameras) will not be reimbursed.
Subsequently, the Board updated the Reimbursement Policy in May 29, 2020 to include the following:
Generally, staff's out-of-pocket purchases of technology equipment, computer peripherals (e.g. headsets, printers, etc.) and supplies (e.g. printer toner) for the work from home arrangement will not be reimbursed. These purchases are only permitted if they are considered essential item(s) for work they are performing, and the supervisory officer preapproves the purchase.
Furthermore, the Board argued that changes related to the COVID-19 pandemic did not constitute technological changes under the collective agreement. Finally, the Board argued that they did not breach seniority rights by implementing changes to protect health and safety during a global pandemic.
Arbitrator Gedalof considered three main questions:
- Has the Board violated the collective agreement, the ESA or been unjustly enriched by "passing on the costs" of remote learning to its employees or has it reasonably exercised its management rights?
- Has the Board implemented technological changes without giving proper notice, in breach of the collective agreement?
- Has the Board altered terms and conditions of employment in a manner inconsistent with the collective agreement?
The Arbitrator's decision
Arbitrator Gedalof concluded that the Board reasonably exercised its management rights and did not violate the collective agreement or the ESA. The Arbitrator also found that the Board had not been unjustly enriched. The Arbitrator reviewed the collective agreement and found no specific provisions regarding expenses incurred when it is "illegal, impossible or unsafe to enter the workplace in order to work, but where it is possible to do so from home at some personal cost"1.
Due to the silence in the agreement, the Board instituted the Reimbursement Policy as a reasonable way to address the situation since it provided employees with an opportunity to obtain the Board's approval for expenses, and to explore alternatives to making out of pocket purchases. Arbitrator Gedalof noted that many employees purchased items without exploring other options with the Board, or prior to obtaining the Board's approval for reimbursement. Additionally, the Board did not breach section 13 of the ESA because they did not withhold wages. In regards to the unjust enrichment argument put forth by the Union, the Arbitrator found that the Union failed to satisfy the three criteria for unjust enrichment, which are an enrichment, a corresponding deprivation, and the absence of any juristic reason for the enrichment.2
Second, Arbitrator Gedalof concluded the Board did not violate provisions of the collective agreement, which required the Board to discuss technological changes with the Union no later than 12 weeks prior to the introduction of the change. Since the changes were made due to government-imposed mandates for school closures, the transition to remote working did not constitute a technological change as contemplated by the collective agreement. Moreover, the Board did not make the decision to impose remote work. The Arbitrator stated:
It would be simply absurd to conclude that the parties intended to capture such temporary emergency measures with this provision, given the 12 week advance notice requirements. It would mean, effectively, that in order to comply the Board was required to put any technological changes necessitated by the shutdown on hold for 4 months, or in this case beyond the end of the school year and the immediate need to even implement those changes.3
Arbitrator Gedalof concluded the provision requiring 12-week notice for decisions to introduce technological changes did not include temporary emergency measures in response to the COVID-19 pandemic. Therefore, the Board did not violate the collective agreement.
Finally, the Arbitrator found that the Board did not alter the nature of employment resulting in a breach of seniority rights. Since the changes to the positions were caused by temporary emergency measures to protect workplace health and safety during a global pandemic, the Arbitrator found that the parties did not intend to include such changes in the collective agreement. However, the Arbitrator noted that if the changes were made in different circumstances, this might constitute a breach of seniority rights.
Arbitrator Gedalof's decision in TDSB v. CUPE Local 4400 highlights the deference attributed to school boards during the COVID-19 pandemic where health and safety concerns are paramount. As long as the school board's actions are reasonable, labour-law decision-makers will interpret collective agreements in favour of the employers who have had to adapt to new circumstances. The COVID-19 pandemic was unprecedented and most, if not all, collective agreements will not include provisions to address such circumstances. Labour law decision-makers will likely have to continue to interpret silence in order to adapt to the ongoing COVID-19 pandemic.
1Toronto District School Board v CUPE
Local 4400, 2021 CanLII 27922 (ON LA) at para 26.
2 Peter v Beblow,  1 S.C.R. 980
3 Ibid at para 30.
This article is authored by Daphne Chu, Summer Law Student.
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