Back to work for some, but here’s what to do if you don’t get that call

Howard Levitt: Many workers could be unemployed well into the new year and not know it yet.

August, dubbed by Sylvia Plath as that odd uneven time between summer and autumn, is odder still this year, given that for many employees it will be the end of an unprecedented couple of seasons that have left them, for the first time in their careers, at home on a forced long vacation.

From museums to bars and convention centres, stage three of Ontario’s reopening is in full swing, as it is elsewhere. Despite this massive roll-out, my office is fielding increasing calls from employees who haven’t been called back to work, still indefinitely laid off, and don’t understand why. COVID-19’s eternal summer rolls on for them, rupturing both their lives and expectations.

A return to work is even more critical as the Canada Emergency Response Benefit (CERB) winds down, and employees are desperate to receive their normal paycheques. An estimated four million Canadians are expected to move over to Employment Insurance benefits when CERB ends, which will pay much less to many of them.

Many unwittingly trusted that their employers would call them back to work quickly and resisted taking legal action despite their ability to claim constructive dismissal the moment they were sent home. I have written about this option previously.

Some employees exercised their common law rights and commenced legal actions, but the greater majority elected to wait out their layoffs and rely on minimum employment standards rights. The Employment Standards Act in Ontario had allowed employers to lay off employees for 13 or 35 weeks, depending on whether benefits are continued (other provinces have different time lengths).

But in May, after many employees were already laid off, Doug Ford’s government passed a regulation under the act that changed the law on layoffs. The Infectious Disease Emergency Leave (IDEL) considerably extended the timelines to keep employees at home without running afoul of employment legislation (although not the common law before the courts).

If you are a non-unionized employee who was given reduced hours or laid off because of COVID-19, your layoff was automatically converted to an IDEL, retroactive to the beginning of the pandemic.

What every Ontario employee should know is that this leave ends six weeks after the emergency is declared over, which happened on July 24. That means if you are out of work, your IDEL will end Sept. 4, 2020, and the 13- or 35-week countdown before a layoff is deemed a dismissal under the act will only commence then.

If you were patiently waiting for a call back to work within 35 weeks of being laid off in March, that recall may come much later than you expected. Indeed, the clock on your layoff time has not even started yet. Simply put, many employees may be unemployed well into the new year and don’t know it yet.

This is only the case, however, if you accepted your layoff, and, therefore, being placed on IDEL. The Employment Standards Act does not prevent an employee from rejecting a layoff or wage reduction and claiming constructive dismissal.

But if you accepted the layoff without any proviso by either yourself or the employer as to how long it would last, you will have to wait until others are recalled and you are not, before your right to sue for wrongful dismissal is revived. If you don’t take action at that point, you will have to wait until the act’s layoff time expires and you are deemed terminated under that.

There are several things employees should consider if they are currently laid off.

You can exercise your common law rights to avoid continued lost wages by getting legal advice now and seeking back wages to March as well as ongoing damages for your employment being terminated.

You can assert a claim for wrongful dismissal damages since few existing employment agreements permit employers to place employees on extended leaves or reduced hours.

You can use a lawyer to help get you to the front of the line for a recall by communicating your readiness for work and that a recall will eliminate your damage claims, motivating employers to do just that.

You can also consider what your legal options are now that months have rolled on with no end to your enforced vacation in sight. At the beginning of the pandemic, many employees elected to wait and see, instead of taking legal action. But getting legal advice now can help you determine if a recall is coming at all, or if your job has been eliminated so you can seek wrongful dismissal damages.

Here are some of the questions I have received recently.

Q: I work in scientific research where the money comes from three-to-five-year research projects, so we are always on a contract basis. If there is no more funding, no job. Do we have the same rights as regular employees, for instance, when it comes to severance pay?

A: If you are employed on a five-year contract, you are entitled to severance to the end of that contract unless there is an earlier termination provision. If you are not employed on such a term, then you have the same rights as any other employee and the fact that your employer did not receive funding is not cause for discharge (although it may affect your ability to recover monies once you obtain a court judgment).

Q: My severance has come as one lump sum. Do I have the right to know the exact breakdown of a severance package, such as how many weeks at base pay, how much in benefits and how much in vacation and bonus?

A: No. What is relevant is whether the total amount equates to your legal entitlement. How the company broke it down in its own calculations is not.

Q: In early May, my manager, who also owns the business, told me my job was going down to four days a week and my hours then changed. Eight weeks ago, my pay was reduced by 16 per cent. What can I do?

A: When your hours were reduced to four days, you had the option of claiming constructive dismissal or, at least, putting a time limit on the cutback in your response. If you just accepted it, that has become your new work week/wages. A reduction of 16 per cent is exactly how much an employer can reduce your wages without it becoming a constructive dismissal. But even a reduction of 16 per cent or less allows you to keep working and sue for the difference. If you again do nothing, your income can be permanently further reduced.

Q: How far does an office have to move ( in time or kilometres ) in order for me to qualify to use the constructive dismissal process?

A: That is different in every case. If you are a manager for a national or international employer, it is an implied term of employment that you can be asked to transfer. But if that does not apply, it still depends on your status. A poorly paid administrative assistant reliant on public transit can refuse a job that would take him more than an additional 45 minutes or so each way. A more senior employee can be expected to drive to work, but, again, she can reject a transfer that would result in an additional 45-minute commute or so.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.