After Being “Temporarily Laid Off”, My Date of Recall has Came and Went. What are my Options?

October 2nd, 2020 in Employment & Severance

The COVID-19 pandemic has brought with it many new challenges to our world, and in particular, our economy. With already limited business operations in order to abide by government restrictions and a second-wave of infections now upon us, it is likely that more Canadians will not be called back to their jobs or will now lose their jobs. With this in mind, it is important that employees understand their rights upon termination and take the opportunity to speak with an experienced employment lawyer to ensure that they secure their proper entitlements upon termination.

What is a “Temporary” Lay Off?

As mentioned in our previous blog, the Ontario government made drastic changes to the Employment Standards Act, 2000 (“ESA”) back in May when it essentially froze the clock for temporary lay offs. This meant that employees who would normally have been considered to be laid off due to a reduction in hours would not qualify as being laid off during the “COVID-19 period”. The period was set to expire on September 4, 2020. However, Ontario Regulation 492/20 has since amended this date to January 2, 2021. Businesses will now be relying upon these extended lay off periods to further delay paying employees what they are rightfully owed under the common law.

How Does this Affect me?

When the restrictions on businesses first came into place back in March, many employers chose to “temporarily” lay off their employees in anticipation of being able to bring them back when the restrictions loosened. Unfortunately, for many employees, their proposed date of recall has come and gone without any idea of when they may be called back to work in the future. If you are in a situation like this, we can help.

Some “temporary” lay offs may have in fact become permanent if the employer has not provided the employee with any indication of when they will be asked to return to work. Additionally, some employers have no intention of calling the employee back to work at all and may have fundamentally changed their operations as to no longer require that position.

What Are my Options?

Many employees who have been informed that they were temporarily laid off have in fact been constructively dismissed pursuant to the common law. A constructive dismissal occurs when an employer makes unilateral and substantial changes to the terms of your employment. Essentially, a “temporary lay off” is an employer choosing to unilaterally and substantially change the terms of your employment, thereby constituting a constructive dismissal.

Fortunately, employers do not have an automatic right to lay off employees under the common law unless it is clearly stipulated in a properly drafted employment contract. Most employment contracts are not drafted that way. Furthermore, most employment contracts that purport to limit an employee’s rights upon termination to the minimums as set out by the ESA have been deemed to be invalid by the courts. Instead, many employees are entitled to common law notice upon termination, which is almost always far greater than the ESA minimums. To learn more about the law on wrongful and constructive dismissal, including what you might be entitled to, check out our blog.

If your employer has temporarily laid you off and you have not yet been recalled to work, it is likely that you have been constructively dismissed. It is crucial that you fully understand your employment rights, including your likely right to termination pay pursuant to the common law. Do not allow your employer to take advantage of the global pandemic by leaving you without an income.

How we Can Help

The first step in asserting your legal rights is contacting a qualified and experienced employment lawyer. At Vice & Hunter LLP, our employment law team works diligently to secure the maximum entitlements for our clients and would be happy to schedule an appointment to discuss your legal options.

To reach the authors of this blog, J.F. Lalonde and Andrew Donaldson, please call 613-232-5773.