COVID‑19 has resulted in the temporary layoff of many employees. The rules relating to temporary layoff are important to understand as there are now two sets of time frames in play, one for COVID‑19 related layoffs and the other for non-COVID‑19 related layoffs.
The below chart outlines the layoff rules in each situation. Importantly, you as an employee must understand that in the event you are not recalled pursuant to the Employment Standards Code within the stipulated timelines, your employment has been terminated. This gives rise to the same termination liability on the employer as if you were wrongfully dismissed during active employment.
|Reason for layoff||Initial layoff date||The maximum length of layoff||Termination occurs on the:|
|Unrelated to COVID-19||Prior to March 17||60 days total in a 120-day period||61st day|
|March 17 – June 17||120 consecutive days from the initial layoff date||121st consecutive day|
|On or after June 18||90 days total in a 120-day period||91st day|
|Related to COVID-19||Any date||180 consecutive days from the initial layoff date||181st consecutive day|
Your termination rights include both the minimum termination notice or pay in lieu thereof outlined in Section 56 of the Employment Standards Code and notice or pay in lieu thereof provided by the common law.
In order to assess proper pay in lieu of notice, courts look to a variety of factors including an employees’ age, education, length of service, position held, and any other personal factors impacting the assessment such as health or disability concerns. The state of the job market is also an important factor.
In Canada, there is a “soft cap” of 24 months on reasonable notice periods. However, in several recent decisions, courts have demonstrated a willingness to exceed this “soft cap” where the facts warrant.
It is also important for you as an employee to understand that the layoff itself may amount to a constructive dismissal entitling you to pay in lieu of notice. It is only where an employer has a contractual right of layoff that the layoff will not amount to a constructive dismissal.
Understanding your rights upon layoff is essential to you receiving full compensation if you are not returned to work when the layoff period expires. Finding another job in the current economic climate will be challenging, and your pay in lieu of notice will help ensure that your family is protected while you search for a new job. At Willis Law, we are here to help ensure that you understand your rights upon layoff or termination and to be your advocate in these challenging times.