Can I work somewhere else during a layoff?

Since the beginning of the COVID-19 pandemic, layoffs have become much more commonplace. It is therefore particularly important that employees be made aware of their rights and options in these situations. Timing is often critical when it comes to these situations, so the sooner you understand the situation and act, the better. This blog will provide an overview of what can happen when someone is laid off and considering working elsewhere.

Do employers have the right to impose a layoff?

Many employers incorrectly assume that they can put you on a temporary layoff.  While a province’s employment standards legislation explicitly references temporary layoffs and how they must be handled, the legislation does not give the employer the unilateral right to impose such a layoff. That right comes from the specific contractual agreement (written or otherwise) between the employee and employer.

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Temporary layoffs for BC workers

Without a contract explicitly permitting a layoff, or where temporary layoffs are not common within the industry in question, a temporary layoff will likely constitute a constructive dismissal and entitle you to severance.

Layoffs with the employee’s consent

If an employee consents to being laid off by their current employer (which could then remove your right to severance), but choose to find work elsewhere during the layoff, this may mean the end of your current job.

In the event your current employer recalls you back to work after you begin a new job, you may have to choose between that job and new job. This is particularly so if working both jobs would create a significant conflict (e.g. based on the demands of both jobs).  This may result in a resignation from your current position in favour of the new job.  Again, in this case, you may not be entitled to any severance.

Layoffs without the employee’s consent

If you do not consent to being laid off, and it is determined that you have been constructively dismissed as a result, you will be entitled to full severance as of the date you were placed on the layoff.

In claiming that you were constructively dismissed, much like an employee who has had their employment terminated, there is an expectation for you to look for replacement work. This is known as your duty to mitigate.  In the event you find another job in this case, and depending on the nature of the new job, you may not be able to claim any damages or compensation from your former employer beyond the date of your new job.  This is because you could be deemed to have fully mitigated your losses since the layoff began.  If you refuse to look for another job following the layoff, a court may reduce the compensation owed to you otherwise.

But what if an employer calls you back to work after previously imposing a layoff?  Even if you take the position that your employment was constructively dismissed because of the layoff, you may still be required to return to the job upon being recalled.  In this circumstance, unless it would be embarrassing, humiliating, or hostile for you to return (and the simple fact of the layoff may not be enough in this regard), the expectation is that you return to work. You may still be able to claim damages from the employer up to the date of the recall, but that may be all that you can claim (your damages would potentially be “mitigated” at that point). If you still refuse to return to the job, you also may be deemed to have effectively abandoned or quit your job.

When to contact an employment lawyer

If you have been put on a temporary layoff in Ontario, Alberta or British Columbia, or you find yourself in a situation similar to those outlined above, contact our team immediately to determine your rights and legal options before taking any action. As Canada’s most positively reviewed employment law firm, our team has the experience and expertise to provide you with the advice you need, the compensation you deserve.