Employers facing constructive dismissals with mandates lifting

Public health restrictions across the country continue to lift. For employers who imposed vaccine mandates in the workplace and terminated employees as a result, the ending of restrictions could lead to further legal ramifications.

An Ottawa employment lawyer at Samfiru Tumarkin LLP spoke with the Canadian HR Reporter on the rights of laid-off and terminated employees and what employers could now face.

They urge employers to consider bringing back employees if they know their vaccine policy is going to be amended or revised as employees are within their rights to pursue constructive dismissal.

“The employer is not saying to them: ‘You’re fired’ but the end result is the same because the employer is preventing the employee from working and it has stopped paying them. So they’ve gone from full-time work and full pay down to zero. So… in a situation like that, an employee has the choice: they can either accept that change to the terms and conditions of their employment and just wait it out, hope they get called back to work,” says the employment lawyer. “Or they can treat it like a termination of their employment and they can go after severance.”

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The lawyer goes on to state that the removal of vaccine mandates by the government will strengthen cases. “Even if an employer was, for example, going to argue that they were just following the health and safety guidelines of the province, they’re no longer able to hide behind that as of the date that those were removed. And so it makes those employees’ cases for constructive dismissal and arguing that it’s unreasonable to have them on an unpaid leave… just that much stronger at this stage.”

Employers who wish to bring back employees are facing the possibility of employees refusing to return, The lawyer adds. “An employer may try to call that person back to try and reduce their exposure to liability for severance, but it’s not necessarily going to be successful,” says the lawyer at Samfiru Tumarkin LLP.

They go on to state that it is important for employees to be aware of proposed changes if they are asked to return to work.

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“As an employee, if you’re recalled back to work, then you want to make sure that you make it clear that you’re not abandoning any potential claim you may have had for constructive dismissal by coming back to work, and that you’re not agreeing that they can do this again to you in the future. In other words, this one instance of what occurred does not create a precedent for them to be able to do it again,” says the lawyer.