2020 has been the year of layoffs. We have received numerous calls from clients who were laid off wondering if their employer was allowed to lay them off and what they can do about it. The answer depends on the employment contract and the ever-changing legislation from the Ontario government.
The Employment Standards Act the (“ESA”) contains a provision which allows for temporary lay-off. Pre Covid-19, the ESA told employers that they could lay off an employee for 13 out of 20 weeks, or 35 out of 52 weeks if the employer continues the employee’s benefits, for example. Pre Covid-19, if the employer did not bring the employee back to work at the end of these periods, the employee was deemed terminated and was owed termination pay and severance pay, if applicable.
However, since March 1, 2020, the Ontario government has changed the ESA legislation to extend temporary layoffs. Effectively, the government put a “freeze” on these time periods above. Initially, the freeze was to end September 3, 2020. Then the government extended it to January 2, 2021. On December 18, 2020, the government extended the freeze again. This time until July 3, 2021. This extension means that under the ESA, employees can now continue to be laid off until July 3, 2021 without the layoff turning into a termination.
This has certainly put many employees in a difficult position of trying to survive on Employment Insurance benefits (or CERB or CRB benefits) or having to look for a new job in a difficult economy.
What can you do?
In 2011, the Ontario Court of Appeal released a decision that said if an employer did not have a term in the employment contract that said a temporary layoff was a term of employment, then a layoff was generally a termination. The court held that this was the case regardless of the fact that the ESA allows employers to lay off.
So, if you are an employee who has been laid off from work in 2020, you may be able to claim that you have actually been terminated. You need to review your employment contract with an employment lawyer and discuss your legal options and next steps.
If you have been laid off you can contact Toronto Employment Lawyer and Barrie Employment Lawyer Nicole Simes at MacLeod Law Firm via [email protected] or 647-204-8107.
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