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HomeMy WebLinkAboutReynolds 01-01-11 '. ~ IN THE MATIER OF AN ARBITRATION BETWEEN: 3~'" - NORTH BAY AND DISTRICT .. ASSOCIA TION FOR COMMUNITY LIVING ("the employer") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 667 ("the union") AND IN THE MATTER OF A GRIEVANCE OF GLENN REYNOLDS (OPSEU #99-667-054) ... ARBITRATOR: Ian Springate ',< .. .,;.. .., APPEARANCES For the Employer: Jack Braithwaite, Counsel . .' Darleen Brooks, Director F or the Union: Jim Gilbert, Grievance Officer Glenn Reynolds, Grievor , , , HEARING: In North Bay on March 30; September 6, 7, 2000 - " 2 AWARD INTRODUCTION In a grievance dated April 6, 1999 the grievor alleged that the employer had failed to provide him with a proper notice of lay-off as required by the Employment Standards Act ("the Act"). Article 12.02 of the parties' collective agreement, which is set out below, requires that the employer provide an employee with notice of lay-off in accordance with the Act. 12.02 The Employer will give notice of lay-off in accordance with the Employment Standards Act currently in force. The grievor started working for the employer in November 1992. From December 1996 onward he was a community support worker employed in a community alternatives program. At the time of the events discussed below he was located at the employer's F -J Dellandrea Place. ! As discussed later in more detail, the grievor was laid off indefinitely effective March 31, 1999. Under the Act his inde[mite lay-off amounted to a termination of employment and triggered a notice requirement. The union contends that section 57(1) of the Act required that the grievor receive six weeks notice of lay-off in writing and that section 8(1) of Regulation 327 required that this notice be served personally or by registered mail. The union contends that the grievor did not receive a notice that met these requirements in connection with his lay-off on March 31, 1999. The provisions relied on by the union read as follows: 57(1) No employer shall terminate the employment of an employee who has been employed for three months or more unless the employer gives, ... (f) six weeks notice in writing to the employee if his or her period of employment is six years or more but less than seven years. 3 Reg. 327 8(1) Notice of termination of employment shall be in writing addressed to each person whose employment is to be terminated and shall be served personally or by registered mail. The employer contends that the grievor did receive written notice in accordance with the above provisions. In the alternative, it argues that he received a greater benefit which pursuant to section 4(2) of the Act prevailed over the requirements of section 57(1). Section 4 provides as follows: 4(1) An employment standard shall be deemed a minimum requirement only. (2) A right, benefit, term or condition of employment under a contract, oral or written, express or implied, or under any other Act or any schedule, order or regulation made thereunder that provides in favour of an employee a higher remuneration in money, a greater right or benefit or lesser hours of work than the requirement imposed by an employment standard shall prevail over an employment standard. THE DECEMBER 18. 1998 LAY-OFF NOTICE In 1998 the employer began restructuring its operations. This resulted in several employees, including the grievor, receiving notices of lay-off. On December 18, 1998 Ms. Darlene Brooks, at the time the employer's Director of Support Services, met with the grievor to give him a written notice of lay- off. Also in attendance was Ms. Sherry Carnevale' who was at the time the manager ofF-J Dellandrea Place. The lay-off notice advised the grievor that he was to be laid off effective January 29, 1999. The notice referred to Article 12.04 of the collective agreement. This article provides that in certain circumstances an employee who has received a lay-off notice' may "bump" a more junior employee or, if this is not possible, the employee can be placed on a recall list and considered for any new or vacant positions that might arise. The actual notice of lay-off read as follows: . " 4 Dear Glenn This letter will serve to advise you that your position of Community Support Worker with the North Bay and District Association for Community Living IS being terminated effective January 29, 1999 due to downsizing of the Alternatives program. In accordance with Article 12.04 of the collective agreement, please advise me in writing if you wish to be placed on a recall list to be considered for any new or vacant position that arises. We wish you the best of success in your future endeavours. Yours truly "Darlene Brooks" Director - Support Services i The grievor testified that during the December 18, 1998 meeting Ms. Brooks told him that the employer was required to give him a lay-off notice in order to put him on a recall list so that he could be transferred without any contractual dispute. He also said that Ms. Brooks advised him that he was not really being laid off and the lay-off notice was a technicality to go through so that he could remain in continued service. The representative of the union asked the grievor if Ms. Brooks had used the word technicality. The grievor replied that she might have done so. Later, in response to a question from employer counsel, the grievor said that he did not recall if Ms. Brooks had actually used the term. The grievor testified that during the December 18th meeting Ms. Brooks told him that he would not miss any work and that as of February 1, 1999 he would be placed into a position iIi the employer's independent living pro gram. Later, in response to a question from employer counsel, the grievor said that Ms. Brooks told him that he would be transferred into the independent living position. He indicated that based on what Ms. Brooks said to him he concluded that the employer and the union had agreed that he would be transferred into this position. The grievor testified that he asked Ms. Brooks for a written guarantee that he would continue to be employed but she refused his request. Employer counsel asked the grievor if he had 5 been confused by her response. He relied that to a certain degree he had been. In his evidence the grievor described the December 18th meeting as "odd". He said that the situation did not feel like a lay-off or like a transfer and it was confusing. Ms. Brooks testified that during the December 18th meeting she talked to the grievor about his lay-off notice, . the employer's restructuring and the fact there were to be additionallay-offs. She indicated that she also talked to him about the classification structure and seniority provisions in the collective agreement and why he had been selected to be laid off. Ms. Brooks testified that she also told the grievor about new positions that would be opening up that he could apply for. She said that in particular they discussed an opening that was to arise in independent living. She testified that she did not tell the grievor that the lay-off notice was a technicality but she did say to him that with restructuring it was likely that he could apply for another position within the agency. Ms. Brooks said that she explained to the grievor that she had met with the union, including Mr. Trevor Knight the local union president, to discuss the agency's restructuring and employee lay-offs. Ms. Carnevale testified that during the December 18th meeting Ms. Brooks gave the grievor the lay-off notice and explained to him that because of his place on the seniority list and the collective agreement his position was to be terminated. She said that Ms. Brooks told the grievor that new positions were to be created that he possibly would be qualified to perform. Ms. Carnevale contended that Ms. Brooks did not refer to the grievor's notice of lay-off as a technicality. Based on the evidence set out above I fmd that Ms. Brooks did not tell the grievor that his notice of lay-off was a technicality or that the union and employer had agreed he would be placed in an independent living position. Rather, she told the grievor about future positions he likely would be qualified to apply for. In doing so she engaged the grievor in a discussion about a planned opening in independent living. Ms. Brooks appears to have been trying to put the grievor's situation in as positive a light as possible. I am satisfied that based on what Ms. Brooks said to the grievor he concluded 6 that notwithstanding the written notice of lay-off he was to be placed in the independent living position and continue to be employed by the employer. On December 21, 1998 the grievor wrote to Ms. Brooks. The key portion of his letter said: "I would like to request to be put on the recall list at the time of lay-off'. The grievor testified that he wrote the letter because Ms. Brooks in a telephone discussion had told him that if he wrote the letter he could be transferred to a new position. On January 14, 1999 the employer posted and invited employees to apply for a support worker position in the independent living program. This was the same position the grievor had understood he would be placed into. The grievor testified that he was surprised by the posting. In response to a question from employer counsel he said that he realized the scenario that had been presented to him was not going to be the case and that applying for the position was his only choice. The posting for the independent living position indicated that an applicant required either a DSW diploma or a university degree. The grievor had a DSW diploma but not a degree. He applied for the position, as did five other employees who had greater seniority than he did. The grievor was not the successful applicant. Ms. Carnevale testified that she believed the independent living position had been the only one that the grievor formally applied for. The representative of the union relied on this statement in his [mal submissions. It is clear from the discussion below, however, that the grievor also applied for other posted positions. At several points in his evidence the grievor suggested that after January 14, 1999 he continued to believe that he would be transferred to another position. I am satisfied, however, that as this date he recognized that his continued employment with the employer was not guaranteed. On January 14th he filed a written request asking that he be allowed to bump Mr. Marcel Rochefort a home support worker. On the same day he filed a grievance whiç;h alleged that he had been wrongfully dismissed and denied the right to displace a more junior employee. , , 7 On or about January 14, 1999 the employer posted and invited applications for certain positions that listed a university degree as a required qualification. The grievor testified that on either January 27 or 28, 1999 Mr. Knight told him that he had been called by the employer's executive director about the grievor possibly being placed in a night staff position. The grievor indicated that nothing came of this proposal because the position had to be staffed by a female. THE JANUARY 29, 1999 TELEPHONE DISCUSSIONS Pursuant to the December 18, 1998 lay-off notice the grievor's last day at work was to be Friday January 29, 1999. The grievor testified that on January 29th he said good bye to his colleagues and clients prior to leaving for home. Ms. Brooks testified that on January 29, 1999 she participated in a ! teleconference with the union. She indicated that Mr. Knight also participated in the call. Ms. Brooks said that during the teleconference the union requested and the employer ágreed to extend the grievor's notice of lay-off to March 31, 1999. This was when two other employees in the same classification as the grievor were scheduled to be laid off The grievor's testimony suggested that the union had subsequently provided him with a different version of what had been agreed to. No official of the union, however, was called to give evidence to contradict Ms. Brooks' testimony. Accordingly, I fmd that on January 29th the employer agreed to the union's request that it extend the grievor's layoff notice to March 31, 1999. At about 3:00 p.m. on January 29, 1999 Ms. Brooks telephoned the grievor at home. Ms. Brooks made the call from the office of Ms. Jennifer Valenti, who is now the employer's Director of Support Services. Ms. Valenti was in her office as was Ms. Chris Guillemette, now the Manager of Vocational Services. Ms. Valenti and Ms. Guillemette could hear what Ms. Brooks was saying to the grievor but not what the grievor said in reply. During the telephone discussion Ms. Brooks told the grievor that on Monday February 1, 1999 he was to report to his regular position at F-J 8 Dellandrea Place. There is a sharp disagreement in the evidence respecting what else Ms. Brooks said to the grievor. The grievor testified that Ms. Brooks told him that his lay-off had been retracted. He said that Ms. Brooks had twice used the word retracted. . He testified that because he believed the proper way to deal with a retraction of a lay-off notice was to put it in writing, he asked Ms. Brooks to put her information in a letter. He said that Ms. Brooks agreed to supply him with something in writing. The grievor disagreed with a suggestion from employer counsel that Ms. Brooks told him that his lay-off notice was being extended to March 31, 1999. He indicated that Ms. Brooks did not make any reference to March 31 st. Tht? grievor testified that as a result of Ms. Brooks' phone call he felt that he would not be laid off. Ms. Brooks testified that she told the grievor that an extension of his lay-off notice to March 31 st had been agreed to with the union and she hoped the extra time would enable him to apply for new positions that were to be created. She denied having used the word retracted. Ms. Brooks said that the grievor did not seem pleased with the extension of his lay-off notice. She added that he was upset that some job postings had asked for a university degree. She said that the grievor questioned her about how she could supervise people with a university degree when she did not have a degree. The grievor testified that his discussion with Ms. Brooks concerning po stings that required a university degree and Ms. Brooks not having a degree occurred on another occasion when the two of them were walking down a hallway. He initially said that during this discussion Ms. Brooks told him that you don't need a degree to manage. He then corrected himself and said that Ms. Brooks said you don't need qualifications to manage. While the grievor and Ms. Brooks may have also discussed the topic of university degrees in a hallway, in light of Ms. Valenti's testimony referred to below I accept Ms. Brooks' evidence that she and the grievor discussed the issue during their January 29, 1999 phone discussion. I fmd that the grievor voiced his displeasure about job postings that required an applicant to have a university degree and raised the fact that Ms. Brooks did not have a degree. 9 The representative of the union asked Ms. Brooks why she did not put the extension of the grievor's lay-off notice in a letter. She initially replied that she felt her verbal discussion with the grievor had been an extension of the written lay-off notice. She subsequently said that not sending him a letter had been an oversight and she should have sent him a letter. Ms. Guillemette testified that during the January 29th phone conversation Ms. Brooks told the grievor that she was extending his lay-off notice to the end of March. According to Ms. Valenti, what Ms. Brooks said was that the grievor's lay-off notice had been extended to March 31 s1. Ms. Valenti testified that she also heard Ms. Brooks justifying her qualifications to the grievor and so signaled to Ms. Brooks to end the conversation. Based on the above evidence, including the union's request that the employer extend the grievor's notice of lay-off to March 31 st, I fmd that during the phone conversation on January '29, 1999 Ms. Brooks indicated to the grievor that his notice of lay-off was being extended to March 31, 1999. I EVENTS SUBSEQUENT TO FEBRUARY 1, 1999 ( As of February 1, 1999 the grievor continued working in his position at F-J Dellandrea Place. The grievor testified that he knew that this job was not going to. continue but he understood that he would be transferred to another position. The grievor testified that following their January 29, 1999 phone conversation Ms. Brooks did not send him a letter saying that his lay-off notice had been retracted. He said that he decided not to hound the administration for material they might not want to write but to instead concentrate on his job. The grievor applied for a bilingual support worker position that was posted by the employer on February 3, 1999. He was interviewed for the position but not selected because he is not bilingual. When giving his evidence the grievor indicated that he could not recall applying for any other positions subsequent to February 1 s1. Ms. Brooks, however, testified that the grievor also applied for a support worker position at Cedarview. She said that he was not qualified for the position since it required an F licence to 10 drive clients in a van and due to health reasons the grievor was unable to acquire an F licence. The grievor testified that he applied for positions with the employer because the union told him to do so saying that it would make him look good. He indicated that he did not understand the union's reasoning. Effective February 15, 1999 Ms. Guillemette became the grievor's supervisor at F-J Dellandrea Place. Ms. Guillemette testified that during the second week of February she met with the grievor about reassigning the clients he was responsible for. She said that the two of them talked about the clients' likes and dislikes. She also said that she asked the grievor to ensure that his binders were up to date before he left. During the week of March 8, 1999 the grievor approached Ms. Guillemette about being transferred to a service coordinator position. The grievor agreed with employer counsel that he asked Ms. Guillemette to put him in a position where he could be more productive in his remaining days. The grievor contended that he was referring to his remaining days in his ; current position prior to being transferred. He rejected a suggestion that the discussion had been about his job coming to an end on March 31 s1. Ms. Guillemette, however, testified that the grievor told her that he felt his skills could be better used in another area until his lay-off at the end of March. She said that she advised him that it was a bad time to ask for a transfer and urged him to hang in as he only had a couple of more weeks to go. The grievor testified that on or about March 18, 1999 Mr. Knight, the president of the union local, told him that March 31 st was his intended lay-off date. The grievor initially testified that he told Mr. Knight that he did not believe him. He later said that it wasn't that he didn't believe Mr. Knight but rather the employer would have to give him a notice of lay-off since the employer knew the rules. He added that the employer had done it right the fist time and so why not the second time. On March 22, 1999 the grievor was telephoned by Mr. Ralph Whitehead who the grievor described as an accountant bookkeeper with the employer. Mr. Whitehead asked the grievor if he wanted to stay on the recall list or take his severance pay. The grievor testified that he asked Mr. Whitehead why he was being asked this question and should he not have received a notice of lay-off. The grievor said that Mr. Whitehead told him .. 11 that he had a March 18, 1999 letter to the grievor from Ms. Brooks and read the letter to him over the phone. According to the grievor Mr. Whitehead said that he would forward him a copy of the letter. The grievor contended that on March 23rd he received a copy of the same letter except that now it had a new date, namely March 22, 1999. The grievor testified that he was surprised by Mr. Whitehead's call and that prior to the call he had not believed that he would be laid off. Mr. Whitehead was not called as a witness. Ms. Brooks testified that Mr. Whitehead contacted her and said that the grievor had told him that he had not received a written notice respecting the extension of his lay-off. Ms. Brooks' evidence indicated that she had looked for such a notice and on not rIDding one realized that she had relied on her verbal discussions with the grievor and the union. Ms. Books testified that she and the other directors discussed the matter and decided to send the grievor a letter. She said that Mr. Whitehead drafted the letter and she signed it. The letter sent to the grievor was dated March 22, 1999, which is consistent with Ms. Brooks' evidence respecting her discussions with Mr. \ Whitehead and the other directors. There was no logical reason for the employer to prepare such a letter on March 18, 1999 and then not sent it to the grievor. There was also no reason for the grievor to make up the existence of a March 18th letter. I can only conclude that someone was in error about the matter. The March 22, 1999 letter read as follows: Dear Glenn: Further to our verbal advices of January 29, this letter will serve to confirm that your termination date has been amended to March 31, 1999. Please confmn in writing that it is still your wish to be placed on the recall list at date of termination. Your early advices are appreciated. Yours truly "Darlene Brooks" Director - Support Co-ordination '" 12 Ms. Brooks testified that the reference to "verbal advices" in the letter related to her conversation with the grievor when she told him about her discussions with the union. The grievor testified that he found the above letter confusing since up to that point he had trusted that everything would work out and he would not be laid off. He said that he did not understand the references to "verbal advices" in the letter. He also made the comment that the letter "was so badly written I couldn't believe it was real". The grievor subsequently said that he thought the letter must have been sent on the advice of the employer's legal counsel. He also said that he thought he was going to have a job and not be laid off and that the letter was another technicality they were going through that was beyond his understanding. On March 31, 1999 other staff members held a going away party for the grievor. He testified that he expected that at 3 :00 or 3 :30 p.m. he would receive a phone call from the employer but this did not happen. The grievor testified that following March 31, 1999 he received employment insurance for six or seven weeks and then started another job. In June of 1999 the employer contacted the grievor to recall him to work at F-J Dellandrea Place. The grievor did not accept the recall and effective July 7, 1999 the employer tenninated his employment. THE PARTIES' SUBMISSIONS The representative of the union contended that little turns on the conflicting evidence respecting the meeting on December 18, 1998. He acknowledged that the employer had properly provided the grievor with written notice of tennination in compliance with the Act with a fmn lay-off date of January 29, 1999. The union representative characterized an employee's receipt of a notice of tennination of employment as a life-altering event. He submitted that such a notice must be in writing and any extension of the notice must also be in writing. He said that the grievor's evidence respecting his phone conversation with Ms. Brooks on January 29, 1999 should be preferred since the crucial issue is what he understood about what he was told. He argued 13 that the grievor did not waiver with respect to what he understood from the discussion, namely that the lay-off notice had been retracted. The union representative noted that section 8 of Regulation 327 required that any notice of termination be served personally or by registered mail. He submitted that Ms. Brooks' January 29, 1999 phone call did not meet this requirement. He also contended that the March 22, 1999 letter to the grievor did not serve to start a new notice period because it was not served personally or by registered mail. He argued that the grievor is now entitled to six weeks pay in lieu of notice together with the value of benefit coverage for the six-week period plus interest. In support of his submissions the representative of the union referred to Re Kelly, Douglas & Co. and Canadian Allied Manufacturers Wholesale & Retail Union (1977), 14 LA.C. (2d) 371 (Bird). The grievor in that case had been discharged and then reinstated at arbitration. If the grievor had not been discharged he would have been one of a number of employees laid off after having received two weeks notice. Arbitrator Bird held that the grievor was now entitled to receive two weeks' pay with respect to a notice period. The union representative contended that this case demonstrates that the right to notice of lay-off is a substantive right. He also relied on the following excerpt at pp. 373-4 of the award respecting the purpose ofa lay-off notice: Union counsel argued that my duty as an arbitrator is, as far as possible, to place the parties in the position in which they ought to be and therefore Yelland is entitled to two weeks' pay in lieu of two weeks' notice of lay-off. Union counsel elaborated on this submission by saying that the two weeks' notice is intended to give the employee time in which to try to make an adequate response to the impending loss of work. An employee with advance notice of lay-off will be better able to cope with the lay-off than one who is unceremoniously dumped on the labour market, he submitted. Counsel for the employer submitted that on December 18, 1998 the grievor had received a written notice of termination and suggested that an extension of a written notice can be done verbally. In the alternative he argued that the grievor had received a total of 14 weeks advance notice of termination and this was a greater benefit than the six weeks written notice 14 required by section 57(1). He contended that as a result of this greater benefit, and pursuant to section 4(2) of the Act, the requirement that the notice be in writing did not apply. Employer counsel relied on the judgement of Smith J. in Fanaken v. Bell, Temple (1984), 9 D.L.R. (4th) 637 (O.H.C.J.). That case involved an employee who pursuant to what was then section 40 of the Act was entitled to four weeks written notice of termination of employment. His employer gave him more than six weeks oral notice, allowed him to be absent from work with pay and offered to help him fmd other employment, which it succeeded in doing. A provincial court judge held that because the employee had not been given notice in writing he was entitled to four weeks pay in lieu of notice. On appeal Smith, J. held that the employer and employee had made a consensual and generous arrangement that pursuant to section 4(2) prevailed over the written notice requirement. His reasoning was as follows at p. 639: With regard to the requirement of written notice, I accept that standing alone, the words of the section are clear and unequivocal. But if they are to preclude reliance upon the exception provided for in s. 4 as a defence in the circumstances . of this case, then with respect, it becomes impossible to confer upon the equally clear and unambiguous words of s. 4 their natural and what I consider to be their obviously intended meanIng. ... We have what amounts to a consensual, and a very generous arrangement, I might add, for the termination of employment. The Act, it must be emphasized, speaks of minimum standards. It would be ludicrous in my view to insist on a minimum standard in the face of the much greater benefits which the appellant made available and which are clearly and expressly made to prevail by operation of s. 4. This latter section does not provide that the higher benefit be in the form of a notice in writing. Employer counsel also referred to a policy manual from the employment standards program which indicates that if notice of termination -, 15 given an employee is verbal, but greater than the required minimum under the Act, it is viewed as a greater right or benefit under section 4 and thus there is no violation of section 57. The policy states that there is an onus on the employer to show that the employee received and understood the verbal notice and that the notice was specific as to the time of termination. In his reply submissions the representative of the union submitted that the employment standards policy is not determinative. He suggested that the issue should be addressed in the same way as any other matter involving the interpretation of a collective agreement. He also argued that the facts in the Fanaken case were clearly distinguishable from those in the instant case. He noted that unlike this case, in Fanaken a greater notice had been given to the employee at the outset and he had also been given time off work with pay. The representative of the union noted that section 4(2) speaks of a greater right or benefit under a contract. He argued that the onus was on the employer to prove the existence of a contract, which it failed to do. He submitted that there was no evidence that the grievor ever accepted an offer to extend his lay-off notice. He contended that in order for the employer to \. succeed based on section 4(2) it must show that the grievor agreed to be laid off on March 31, 1999, but the evidence was that the grievor did not agree that he should be laid off at all. THE DECISION As noted above, I am satisfied that the manner in which Ms. Brooks described the grievor's future prospects when she gave him the written lay- off notice led him to believe that he would be transferred to an independent living position and not be laid off. When the employer posted. the independent living position on January 14, 1999, however, the grievor recognized that his continued employment with the employer was not guaranteed. On the same day he sought to bump Mr. Rochefort out of his position and filed a grievance alleging wrongful dismissal. In addition he unsuccessfully applied for the independent living position. These events are of limited value in assessing whether the grievor received proper notice of lay-off on December 18, 1998. They are, however, relevant when assessing the validity of his claim that right to the last moment he understood that 4e would not be laid off. .- 16 As noted above, I am satisfied that on January 29, 1999 Ms. Brooks advised the grievor that his notice of lay-off was being extended to March 31, 1999. I am satisfied that the grievor knew that she was not telling him that his lay-off notice had been retracted. One of the grievor's first reactions when Ms. Brooks told him that he would remain in his job was to complain about job postings that listed a university degree as a required qualification. This issue would have been a matter of immediate concern to the grievor only if his lay-off notice had been extended rather than retracted. The grievor's subsequent applications for other positions is also consistent with him having understood that the notice of lay-off had been extended. Based on the grievor's prior experience and the fact that the employer was creating new positions he hoped and perhaps fully expected that he would not actually be laid off. This expectation may explain his claim that he continued to believe that he was not going to be laid off despite a number of indications to the contrary. These included Ms. Brooks' January 29th phone call, the grievor's meeting during the second week of February with Ms. Guillemette, his March 18th discussion with Mr. Knight, his March 22nd phone call from Mr. Whitehead and the March 22, 1999 letter from Ms. Brooks. If what the grievor meant was that he did not understand that he might be without a job as of April 1, 1999, then I do not accept his claim. I am satisfied that the grievor knew as of January 29, 1999 that the employer had set March 31, 1999 as his lay-off date. It appears to have been the grievor's understanding that the employer could not properly lay him off on March 31 st because he had not received a timely written notice effective on that date. The grievor's understanding of his legal position, however, does not detract from what he was told by Ms. Brooks. In addition, Ms. Brooks statement at the hearing that her not sending the grievor a letter respecting the extension of his lay-off notice had been an oversight and she should have sent him such a letter does not detract from the fact that she verbally gave the information to the grievor. The union contends that when the employer gave the grievor oral notice of lay-off there was no acceptance of an offer on his part so as to create a contract respecting a March 31, 1999 lay-off date. Section 4(2) of the Act refers to a contract that is "oral or written, express or implied". When the grievor left work on Friday, January 29, 1999 he did not have a job to go to on the following Monday. Ms. Brooks subsequently phoned him at home and told him his lay-off notice was being extended to March ~. 17 I 31, 1999. The union had asked for and the employer had agreed to this extension. The grievor did not decline the extension but rather showed up for work on Monday February 1, 1999. I am satisfied that these events served to create an implied contract respecting the extension of the grievor's lay-off notice, namely that it would be extended to March 31, 1999. I agree with the union that I am not bound by the employment standards policy. In addition, I do not accept the employer's suggestion that a written notice can be extended verbally with the additional part somehow being regarded as a written notice of termination. I do, however, accept the basic premise of employer's alternative argument. On January 29, 1999 Ms. Brooks advised the grievor that his lay-off notice had been extended to March 31, 1999. This information provided him with more than eight weeks' advance notice of his March 31, 1999 lay-off. This was in excess of the six weeks written notice required under section 57(1) of the Act. The additional benefit provided to the grievor was not as meaningful as that in the Fanaken case. Nevertheless it did provide him with a greater benefit than the minimum required by section 57(1). In line with the court's ( reasoning in the Fanaken case, I find that by way of the oral notice provided to him on January 29, 1999 the grievor received a greater benefit than the employment standard provided for in section 57(1) of the Act. Pursuant to section 4(2) this greater benefit prevailed over the employment standard. The grievor received a notice of lay-off that was in accordance with the Employment Standards Act. His grievance is, accordingly, hereby dismissed. Dated this 11 th day of January 2001. ¿,/ /~~ ~'?rß4?//P Arbitrator/" .