COVID-19 Lay Off Bulletin
We have received a number of inquiries from individuals who have been temporarily laid off as a result of the economic impact of the pandemic.
Generally speaking, a temporary layoff can in certain circumstances constitute a “constructive dismissal”. In theory this may allow the affected employee to seek damages for Wrongful Dismissal. However taking such a legal position in light of these extraordinarily unique circumstances is not generally recommended and should not be pursued without specific legal advice.
We are providing affected employees with the following general advice:
- Try to determine whether the layoff is permanent or temporary in nature to the extent that it is not self-evident in the notice provided.
- If there is nothing provided in writing ask the employer to do so and to confirm whether the layoff is temporary or permanent. Although an employer is not in theory obligated to provide any notice of layoff in writing, it is customary that it do so.
- Please note that a permanent layoff is in fact a “termination” and would entitle the individual to damages for Wrongful Dismissal.
- If nothing is put in writing ask that the employer do so.
- If it is not self-evident from the notice provided, please seek clarification as to whether the layoff is permanent or temporary in nature.
- If the layoff is temporary in nature, try to obtain confirmation as to the duration of the layoff.
- If you are in receipt of medical benefits in the normal course of employment, please ensure that benefits are ongoing during the term of layoff. If benefits have been discontinued you should seek legal advice as to the legal significance of same.
- In addition to obtaining a formal letter from the employer setting out the nature and potential duration of the layoff, you should also receive a Record of Employment (“ROE”). If you do not receive a ROE you should demand it of your employer. Upon receipt of the ROE you should apply for Employment Insurance (“EI”) benefits. If the ROE is not delivered, contact your nearest Service Canada and continue to follow up with your employer.
- Preserve any contract/offer of employment from your employer which will be important in determining entitlements, if in fact there has been a termination.
For more information in respect of the layoff process we refer you to the relevant portion of the Guide to terms of the Ontario Employment Standards Act, 2000.
The above information is provided for general information purposes only and should not be construed as legal advice. Every situation is different. In the event that you believe that you require specific advice we can be reached at (416) 323-9395.
MARVIN A. GORODENSKY PROFESSIONAL CORPORATION