Termination without Cause: Some Troubling Developments
Before I let you know of a new development SFU recently introduced, a little background about what our collective agreement says about the subject of termination.
Our AD 10 policies identify three ways an APSA member may be terminated. This includes 1) termination for cause; 2) termination for non-culpable circumstances; 3) and, lastly, by way of position elimination. The last case, position elimination, may not be a termination in the strictest sense, but it is how the majority of APSA members have lost their jobs. This spring’s mass layoffs of APSA members are certainly evidence of SFU’s use of position elimination to reduce its employee headcount.
For termination for cause, this is usually for things such as gross misconduct: assault and theft are two more obvious examples of gross misconduct. For termination for non-culpable circumstances, this used to be deployed, for example, where someone had a serious illness that prevented them from doing their work. Since Human Rights provisions around medical accommodation has changed employer thinking, termination for non-culpable circumstances is rarely, if ever, used anymore. I can’t recall the last time that SFU used it.
What is termination without cause?Termination is when an employee is let go or fired from their job for reasons unrelated to serious misconduct. The reason for termination can’t be discriminatory (based on gender, race, disability or age). |
The Troubling Development
Very recently, SFU decided to terminate an APSA member without cause. As you note above, our collective agreement, which includes the AD 10s, covers how APSA members may be severed from their employment at SFU. SFU is now saying that they have the management right to terminate APSA members without cause as long as they compensate them with notice or a severance package. While termination without cause isn’t identified in our AD 10s, it is a feature of common law in B.C. and other jurisdictions.
Who Termination Without Cause Could Affect
Now, SFU representatives have asserted that, for the APSA membership, termination without cause only applies to what they call “true managers.” Those are APSA members who per the Employment Standards Act and other applicable statutes have real managerial authority. One of the critical tests of managerial authority is that you can hire or fire without having to seek the approval of a superior. Very fortunately, based on the preliminary results of our analysis, that is hardly anyone in the APSA ranks.
Termination without cause, however, could still apply to a small number of APSA members. These would tend to be the most senior-level APSA members who, for example, can hire and fire independently of the need to seek approval from someone higher up. It’s still a chilling development by SFU, especially when morale at the University is already low, and so many of you fear for your job security. It’s an especially chilling message to send to those in the senior ranks of APSA.
I note here that unions under the Labour Relations Code must have language in their collective agreements that provides that “…the employer must not dismiss or discipline an employee … except for just and reasonable cause”. In other words, union members can’t be terminated without cause.
What APSA is Doing
We’re, of course, vigorously opposed to SFU terminating any APSA member without cause and pursuing every possible avenue to do so. SFU claims to have terminated an APSA member before, but has provided no evidence that they’ve done so, beyond saying that they did so about ten years ago.
We’ll update you as more developments come in.