Where a contract of employment is silent on the issue of Temporary Lay-Offs, an employer is obligated to embark upon a consultation process with the affected employees, in an attempt to reach an agreement. This obligation is intended to protect employees from any unilateral changes to the terms and conditions of their employment – which amounts to an unfair labour practice.
Affected employees, and their respective trade unions, ought to be invited to partake in such a consultation process with representatives from Management and be requested to propose a list of possible alternatives to this process. It is important to remember that the purpose of this consultation process is to ensure that the employees are subjected to a fair and inclusive procedure. As such, discussions ought to be minuted as evidence of meaningful consultation.
Where an employer fails to consult with affected employees prior to issuing notice of the intended layoff, or fails to do so meaningfully, an employee may have grounds to refer an unfair labour practice dispute to the appropriate tribunal.