Howard Levitt: How do I recall some employees, but not others? Your top work questions answered

Here are the most popular pandemic questions employers and workers are asking right now.

Between my law practice, columns, radio talk shows and questions at conferences and seminars, I have been close to the ground throughout the vicissitudes of COVID-19, taking questions on its impact on employers and employees. From early questions on the Canada Emergency Response Benefit and Employment Insurance to questions on layoffs as a constructive dismissal and then, the rights of parents with schools closed, the questions have evolved. So, after over six months, with terminations increasing and layoffs, as a result of legislative amendments, seemingly having virtually no expiry date, what are clients asking the most about right now? 

Q: Can employees that were laid off early on in the pandemic sue?

A: Often not. When they were first laid off, they could have sued for constructive dismissal just as if they were fired. For those whose employers put an initial time limit on the layoff i.e. it will be for four months, and employees who imposed a time limit to their own layoffs will see their rights revived after the stipulated time. But those who sheepishly accepted the layoffs without stipulation and continued in that layoff for several weeks or more, can no longer sue for constructive dismissal until something else material occurs.

For most, their right to sue will be revived if other employees are recalled — and not them — or they are replaced by a new hire. But they must act with relative dispatch or waive their right to sue again. If their employer calls them back to lesser work, hours or pay, that will also revive their right to sue. If the employer finally despairs at the prospect of their return and decides to terminate them, that is an actual, rather than a constructive, dismissal. That is increasingly occurring as employers re-evaluate their workforce for the future and realize, from the last few months, that their empires are larger than necessary. Even the chartered banks are now downsizing.

But if the employee does not sue initially and none of these other events occur, the employee must wait until the period for permissible layoff under employment standards legislation expires which, in many provinces such as Ontario, has been extended and now can be almost a year away. In the interim, if they are not replaced, they can do no more than wait.

The employer, for its part, hopes that these laid-off employees move on to other work and effectively resign. The best advice I have for employees who have waived their right to sue by doing nothing and wish to revive it is to try to negotiate a date by which the employer commits to a return or deems you terminated. That might accelerate your return date or, at least, give you a right to sue if you are not then recalled.

Q: If a laid-off employee finds other work, must the employer still recall them?

A: The answer is yes as layoffs, by definition, are subject to recall. However, if the employee does not accept the recall, they are deemed terminated for cause for abandonment. If the employee is recalled but has another job, they can either return to work or resign. They are better off if they are not recalled but the period for permissible layoff under the Employment Standard Act expires, because that triggers their dismissal. Of course, if they have another job their entitlement is limited to the ESA minimum rather than the vastly greater amount that a court would award. If they are not recalled, and the ESA period for layoff expires and they do not have other work, they are entitled to full wrongful dismissal damages.

Q: Can an employee refuse to return to work when recalled and maintain their employment?

A: Generally not. But if the employer reinstates them at a significantly reduced salary, hours or position, such that the new job would represent a constructive dismissal, the employee can refuse to return or, alternatively, resign and claim constructive dismissal. They also have the option of returning at the lower wage and suing for the difference for the period of notice assessed by the court. Not many employers would retain them in such circumstances and that will likely lead to their wrongful dismissal.

If the employee has elder care or, more commonly, childcare obligations, and no one else is available i.e. partner, parent or care provider, to perform that work for them, the employer must permit them a leave of absence, generally without pay, to do so. But an employer has to accommodate childcare obligations so that, if work can be productively done from home even while caring for children, human rights law obliges that employer to permit that parent to work from home and be paid.

If an employee does not wish to return to that employer, having re-evaluated their employment during the last several months away, their refusal to return would constitute their resignation.

Q: Can an employee refuse to return or leave the workplace if the employer has not taken proper safety precautions or if she, or a family member, is immunocompromised?

A: Generally not. They can ask the employer for a leave of absence. But if the employer does not consent, they have to discuss their safety concerns and, if the employer does not satisfy them, call in a Ministry of Labour Inspector to rule on whether that environment is safe. That ruling is dispositive.

Q: What about employees returning from maternity leaves, disability leaves etc. and the employer does not provide them their same position or wishes to keep them on layoff?

A: Human Rights and Employment Standards legislation provides for various protected leaves and the employer must presumptively reinstate them to their former job, salary and hours if it exists. If it doesn’t, they have to find them a comparable job. If there, however, has been a genuine reorganization so that the person’s job no longer exists and the reorganization was not for the purpose of eliminating that job, the employee may have no right to return but would be entitled to wrongful dismissal damages.

Q: How do I recall some employees but not others back to work when I don’t have enough work for everyone?

A: If you do not recall all employees to their former positions at their former remuneration, you have constructively dismissed the others. This is a Gordian Knot for many employers since they, particularly for an interim period, are unable to recall everyone to full time hours. The best you can do is either have all employees agree to return on a part-time basis initially or justify to the ones not recalled why you have recalled the others first in a manner that convinces them that they will be hired soon as well and that your selection of employees is justifiable. The other approach is to not recall those who would have the least remunerative wrongful dismissal claims.

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.