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Temporary Layoff & Termination

Nov 9, 2020 | 1 comment

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 layoffInitial layoff dateThe maximum length of layoffTermination occurs on the:
Unrelated to COVID-19Prior to March 1760 days total in a 120-day period61st day
March 17 – June 17120 consecutive days from the initial layoff date121st consecutive day
On or after June 1890 days total in a 120-day period91st day
Related to COVID-19Any date180 consecutive days from the initial layoff date181st 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.

1 Comment

  1. Davian

    So i have been layoff work since June 2019 on terms of shortage of work but I notice that my employer did this while I was on my days off . However I’ve noticed that this company starts rehiring again like couple weeks after they lay me off and I kept on reapply to them again on company’s website and through my union and making calls but never got a reply still up until now .

    Reply

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