COVID-19: Ministry of Labour confirms that layoffs are still constructive dismissals

There are many articles one can find about how there have been “changes to the Employment Standards Act” and how companies are allowed to place employees on temporary layoffs until July 3 – with no consequences. There is a notion that with all the changes brought on by the pandemic, and the statutory amendments that the provincial government made to address that, employees’ rights have simply disappeared and employers have been granted extraordinary new rights. This is wrong. The common law requires employers to obtain express consent from employees to place them on a temporary layoff, even if they do so in accordance with the Employment Standards Act.

The Ministry of Labour has just posted a summary of the temporary changes to the Employment Standards Act confirming that indeed, the changes to the Employment Standards Act are and were always intended to be restricted to the Act itself. Temporary layoffs are still only permitted if your contract of employment allows for them to happen. If you did not sign off on that, you did not agree to it, and it is not a term of your employment. While many employers have made the decision to cut back on their staff as a result of the financial impact of the pandemic, this does not eliminate an employee’s right to severance.

This means that if you have been placed on a temporary layoff, it is critically important that you speak with an employment lawyer to discuss your options.  You could be entitled to a substantial severance package.