Employment lawyer on failing to recall employees from IDEL

Interview Summary

While the pandemic seems to have lessened to a degree across the province, many employees are still dealing with the fallout from COVID-19. Some employees, despite the end of IDEL, are still waiting to be recalled to work. What could future layoffs mean for employees? Will employers face more lawsuits if they fail to bring back staff?

Lluc Cerda, an employment lawyer and Senior Associate at Samfiru Tumarkin LLP joins Jerry Agar on Newstalk 1010 to answer these questions and more on employee rights.

Interview Notes

• Prospect of unlimited vacation for employees: For many workplaces, an issue could be employees might not take a lot of vacation despite the fact that they could due to fear of reprisal or comparison to their peers. In Ontario, employees are entitled to a minimum vacation of 2 weeks if under 5 years of employment, and 3 weeks after 5 years.
• The company decides to implement more vacation time: Companies and employers are within their rights to offer more than the standard minimum vacation time for employees however they are not legally bound to do so.
• Reality and impracticality of unlimited vacation: It can be a challenge for employers to implement an unlimited vacation policy in the workplace. Some employees could abuse the privilege and take a significant time away from the workplace which could lead to consequences such as termination. Employees terminated as a result of taking too much time away, however, would still be owed severance pay.
• Employees expected to be recalled to work after IDEL: Due to the pandemic, the provincial government changed the rules for how long a temporary layoff could be under the Infectious Disease Emergency Leave. Employees could be without work for over 2 years as a result of IDEL. Despite IDEL expiring now, many employees are still waiting to be recalled to work. These employees are within their rights to pursue a wrongful dismissal suit.
• Employees asking for a return date from employers in writing: While in theory, it was advisable for employees to ask their employers for a specific recall date, many employers extended the return date several times.
• Employers choosing not to recall employees: While in some cases, employee positions might no longer exist or business has still not returned to normal, in many situations employers are simply choosing not to recall certain staff. While employers are within their rights to terminate employees for any reason, an appropriate severance package must be offered to terminated employees.