I have worked for a mid-sized company in a lower management role for the past 12 years. When the country went into lockdown in March, my entire team and I were temporarily laid off. Most of us were called back to work a few months later, and business has been a little slow since. I have now been placed on another layoff, but the rest of my team is still working. The company told me that if I am brought back, I may be placed in a different role with less pay. Do I have to accept this temporary layoff?
The First Answer
Lior Samfiru, employment lawyer and partner, Samfiru Tumarkin LLP, Toronto
To answer your question about this latest layoff, we need to address the first one. You did not have to accept that original temporary layoff. Instead, you could have treated it as a significant change to the basic terms of your employment, through what is called a constructive dismissal. This would allow you to resign from your position with severance pay. Unfortunately, by accepting the layoff and returning to work, you have now given your employer the right to temporarily lay you off again. This means that you may not have a choice but to accept the layoff.
Unfortunately, it gets worse. The company now may be able to trigger a temporary layoff any time in the future, regardless of COVID-19, because you accepted the initial layoff. You may end up working for a few months and then be off for a few months, again and again. That is why it is important for employees who have been laid off for the first time, to consider whether they wish to accept it, so as to avoid this situation.
You may still have options regarding changes to your job upon your return from this current layoff, if you are not terminated outright with severance pay. If you are recalled to a lower-paying role, you do not have to accept it and you may be able to treat that change as a termination. The same rule as above applies: If you accept the pay reduction, you are giving your employer the right to reduce your pay again and again in the future. You should consult with an employment lawyer to examine your situation and determine the options available to you.
The Second Answer
Cynthia Lazar, lawyer and workplace investigator, Taylor McCaffrey LLP, Winnipeg
You do not have to accept a layoff. However, while it is possible your employer will relent and recall you to work, it is more likely that your employment relationship will be severed. Consider your words carefully. If you are understood to have quit, you may not be eligible for termination pay. It is better to assert you have been “constructively dismissed.”
At common law, your employer cannot lay you off unless it is permitted by your employment agreement or is customary for your type of work. Outside of these circumstances, an involuntary layoff constitutes a “constructive dismissal”. You will be entitled to pay in lieu of notice, the amount of which depends on many factors assessed on a case-by-case basis. Your employment relationship will be permanently severed, and your opportunity to be recalled to work forfeited, so it would be prudent to find replacement employment first. If you can’t find work, and it is clear you will not be recalled, or you would rather be unemployed than return to that employer, you may consider alleging constructive dismissal even without replacement employment.
Apart from common law, employment standards legislation may convert a layoff to a termination in some circumstances. Due to COVID-19, many provinces have changed their rules on this to allow for longer layoffs. If your layoff is converted to a termination, you will be entitled to employment standards termination pay, and may consider a claim for common law notice.
If there is a union at your workplace, other rules may apply, and you should consult with your union representative.
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Published at Sun, 06 Dec 2020 10:00:00 +0000