Ontario CUPE education strike 2022: Rights for working parents

Thousands of education workers across Ontario have voted to ratify a tentative deal that was reached between their union and the province.

The Canadian Union of Public Employees (CUPE), which represents around 55,000 education workers, including childhood educators, educational assistants, and custodians, said during a news conference on Dec. 5 that around 73 per cent of those who voted were in favour of the agreement.

The latest offer by the Ontario government includes a $1-per-hour raise for staff each year, which is an annual increase of approximately 3.59 per cent.

“Because we stood up for fairness and freedom, refusing to be bullied anymore, we ended up with an agreement that’s free of concessions and we more than doubled the wage increase the Ford government tried to impose on us,” Laura Walton, president of CUPE’s Ontario School Board Council of Unions, said in a news release.

Premier Doug Ford announced on Nov. 7 that his government would rescind Bill 28, the province’s Keeping Students in Class Act, 2022, after thousands of education workers across Ontario protested the passage of the legislation on Nov. 4.

WATCH: Employment lawyer Lior Samfiru joined CTV News to discuss how negotiations between the Ford government and CUPE could affect employee rights in the future.

What is Bill 28?

Bill 28 attempted to lock education workers in Ontario into a four-year contract, which includes:

• A 2.5 per cent increase in salary for individuals making less than $43,000 annually
• A 1.5 per cent raise for all other employees

Initially, CUPE argued for an 11.7 per cent increase, which would equal approximately $3.25 more an hour across the board.

Invoking the notwithstanding clause

The Ontario government included the notwithstanding clause in Bill 28, which allowed the legislature to override parts of the Canadian Charter of Rights and Freedoms for a five-year term.

Not only does this protect the legislation from potential constitutional challenges, but it also made the strike action by education workers illegal.

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Free child care during second strike

Ahead of another potential strike by CUPE, the Ford government announced on Nov. 18 that it’s offering free access to child care for front-line health-care workers and staff in licensed child-care settings.

The Ministry of Education said eligible health-care workers include, but are not limited to:

• Doctors
• Nurses
• Personal support workers
• Health-care providers working in hospitals, long-term care homes, retirement homes, and other congregate care settings

The province will also ensure that licensed before and after school programs can “easily pivot to full-day programs” by ramping up “licence revision requests and relocation approvals.”

Can I bring my kids to work during the strike?

In Ontario, non-unionized employees don’t have the right to bring their children to their workplace. You must receive permission from your employer.

As a short-term solution, your company might allow you to bring your kids to the office until you are able to find suitable child care during the strike.

Does my employer have to give me time to find adequate child care services during the strike?

The short answer is yes. Human rights legislation in Ontario protects non-unionized workers from discrimination on the basis of family status.

Your employer is legally obligated to accommodate your job duties when they clash with your responsibilities as a parent or caregiver to family members.

• Example: Your children are suddenly unable to go to school during the day. Your company has to provide reasonable accommodations aimed at keeping you working, while also ensuring that your children are cared for.

However, since strikes are temporary, it’s not particularly practical for employees to enrol their children in an alternative child care program for an unknown period of time.

WATCH: Employment lawyer Lior Samfiru discusses everything employees need to know about the duty to accommodate on an episode of the Employment Law Show.

Does my employer have to let me work remotely if I need to look after my kids during the strike?

In Ontario, employers have a duty to accommodate when a worker’s job responsibilities conflict with their obligations as a parent or caregiver to family members.

However, your company doesn’t have to accommodate you if the request creates undue hardship for the business.

Unless your employer can prove that letting you work remotely would cause undue hardship, it’s likely that you will be able to work from home or another location outside the office that allows you to care of your children during the strike.

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• Employment lawyer on working remotely or being forced back to the office
• Rights to privacy while working from home

Can my employer make changes to my job if I need to look after my kids during the strike?

In Ontario, non-unionized employees don’t have to accept major changes to their job. 

Large modifications such as a demotion, cut in pay, reduction in hours, or negative change to commission are illegal.

When the terms of your employment are significantly changed, the law allows you to resign from your job and seek full severance pay through a constructive dismissal claim.

If you believe that you have been constructively dismissed, don’t quit your job until you speak to an experienced employment lawyer at Samfiru Tumarkin LLP.

LEARN MORE
• Do I get severance if I quit?

Can my employer fire me if I need to work remotely to look after my kids during the strike?

Your employer can fire you for working remotely — even if you are doing so to take care of your children during the strike.

This is called a termination without cause. In Ontario, companies can let non-unionized employees go for any reason, as long as:

• They are provided full severance pay
• The reasons for their dismissal aren’t discriminatory

What your employer can’t do in this situation is fire you for just cause, which would mean no severance package or access to Employment Insurance (EI) benefits.

This type of termination is reserved for the worst kinds of workplace offences, such as theft or insubordination.

If you are fired because you had to care for your children during the strike, then the dismissal is discriminatory on the basis of family status.

In addition to full severance pay, you would likely be able to file a human rights complaint with the Ontario Human Rights Commission.

Successful complaints can result in compensation for individuals who experienced discrimination.

LEARN MORE
• How to calculate severance pay
• Severance for provincially regulated employees
• Severance pay for federally regulated employees
• Rights to severance in a recession

Lost your job? Speak with an employment lawyer

If you are fired or let go for any reason, or you believe that your human rights have been violated, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Toronto and Ottawa can review your situation, enforce your rights, and ensure that you receive the compensation you are owed.