Ontario Appeal Win: Welder’s Silence Did Not Mean He Accepted A Layoff

Samfiru Tumarkin LLP overturned a decision that had stopped an Ontario welder’s severance claim after his employer repeatedly extended his temporary layoff.

Binh Viet Pham had worked for Qualified Metal Fabricators Ltd. for nearly 20 years. When the company laid him off, he waited for a recall. Months later, it argued that his silence meant he had accepted the situation and could not claim severance.

Employment lawyers David Vaughan and Jon Pinkus, Partners at Samfiru Tumarkin LLP, successfully challenged that result at the Ontario Court of Appeal. Binh’s claim was restored and sent back for trial.

The Employer Said Binh Had Accepted The Layoff

Qualified Metal Fabricators asked the court to throw out Binh’s claim. It argued that he had accepted the layoff by not objecting.

The company also relied on a signature on the layoff letter, which Binh disputed, and its history of laying off other employees.

The first judge accepted that Binh had agreed to the layoff and its extensions, and dismissed his claim.

Our team appealed to protect his opportunity to pursue severance.

Waiting For A Recall Was Not The Same As Agreeing

Binh had been told that his layoff was temporary. The company continued extending it while holding out the prospect of his return.

The Court of Appeal found that the first judge had wrongly treated his silence as acceptance. Employees need a reasonable opportunity to understand changes to their job and decide how to respond.

Not immediately protesting did not, by itself, show that Binh had agreed to the layoff.

Other Workers’ Layoffs Did Not Set The Rules For His Job

The employer also argued that its past layoffs of other workers gave it the right to lay Binh off.

The Court of Appeal rejected that reasoning. What happened to his co-workers did not, on its own, establish that his employment terms allowed layoffs.

Binh’s terms did not expressly permit layoffs. Although the layoff letter referred to a “work agreement,” the employer had not produced that agreement.

Without a right to impose a layoff, an employer may face a constructive dismissal claim. In plain language, stopping someone’s work can be treated as a dismissal even when the employer calls it temporary.

Our Team Got Binh’s Claim Back On Track

The Court of Appeal also found that the first judge had failed to properly consider whether the case could fairly be decided without a trial.

On April 13, 2023, it overturned the decision dismissing Binh’s claim and sent the case back to the Superior Court for trial.

This appeal did not decide whether Binh would ultimately receive severance or how much. It restored his claim and corrected the reasoning that had stopped it.

Read the full appeal decision: Pham v. Qualified Metal Fabricators Ltd., 2023 ONCA 255.

What This Means For You

• Silence does not automatically mean agreement. Waiting to see whether you will be recalled does not necessarily mean you have accepted a layoff or given up a severance claim.
• “Temporary” does not settle your rights. Whether your employer can impose a temporary layoff in Ontario depends on your employment terms and circumstances.
• Get advice promptly. Binh’s win is not a reason to wait. Have your contract and layoff letters reviewed so you understand your options and how to respond.
• Before you sign, always check first. A document agreeing to a layoff or changing your employment terms can affect your rights.

A Lesson For Employers

Do not assume that an employee has accepted a layoff simply because they have not complained. Our employment lawyers can review whether your agreements permit layoffs and help you communicate proposed changes clearly.

Another Ontario welder win: See how our team helped Sandra Manthadi secure 12 months’ severance after a business sale.

Has Your Temporary Layoff Kept Getting Longer?

You may have options beyond waiting for your employer to call you back. If your layoff amounts to a dismissal, your severance could be as much as 24 months’ pay.

Our Ontario employment lawyers can review your contract and layoff notices, explain your Ontario severance rights and help you decide what to do next.

Many employment disputes can be resolved without going to court. When a claim is challenged, Binh’s case shows how our team can protect an employee’s opportunity to pursue compensation.