David Vaughan and Jon Pinkus talk layoffs and constructive dismissal with the Law Times

The Ontario Court of Appeal recently ruled that an Ontario welder’s silence during a temporary layoff didn’t amount to consent for the pause in employment. The decision in Pham v. Qualified Metal Fabricators Ltd. could influence other wrongful dismissal suits brought forth as a result of the pandemic.

Many employers argued that employees who waited to pursue legal action after a layoff during the pandemic could not later consider constructive dismissal. Jon Pinkus, employment lawyer and Partner at Samfiru Tumarkin LLP, and one of Pham’s legal representatives, stated that this decision could negate an employer’s argument.

“The employer cannot say that an employee waited too long and that, in and of itself, is dispositive of the claim,” Pinkus said when speaking to the Law Times.

Qualified Metal Fabricators also argued that Pham was aware of layoffs as a term of employment, as he had agreed to a previous layoff in 2009.

David Vaughan, employment lawyer and National Practice Leader at Samfiru Tumarkin LLP, claimed that this argument was not upheld by the Court of Appeal.

“They come to that decision by emphasizing that the right to impose a layoff as an implied term must be notorious, even obvious, from the facts of a particular situation,” says Vaughan. “That’s the legal standard.”

Vaughan went on to explain that Pham’s silence could not be considered acceptance. “Silence on its own or the lack of an objection cannot be deemed to be agreement or consent to the layoff itself.”

The Court of Appeal is sending the case back to the Ontario Superior Court of Justice for a new trial.