Employees are facing new challenges in their workplace due to the Covid-19 pandemic. In this blog, we would like to answer some common questions that employees often raise in connection to their employment.
Q: Can my employer lay me off temporarily due to the Covid-19?
You could be temporarily laid off by your employer only if the employment contract has specifically addressed this possibility and you have agreed to this term. Absent such a term, you may have a claim for constructive dismissal on the basis that you are laid off without an agreement to allow your employer to specifically do so.
Q: If I agree to have a temporary layoff during the Covid-19, does that mean my employer can lay me off again in the future?
If you agree to a temporary layoff without a contract term allowing the employer to specifically do so, you should make it clear in writing to your employer that you are doing so only in response to this specific situation. You must confirm that you are not agreeing to have a layoff as a term of your employment contract.
In this way, once your employer puts you on a temporary layoff again in future after recalling you back to work from this Covid-19 related layoff, you can refuse to accept this. You can consider the layoff as a constructive dismissal and claim a severance package from your employer.
Q: What can I do if my employer wants to reduce my working hours and cut my compensation?
If your employer cuts your pay and reduce your working hours without your specific consent, you may have a claim for constructive dismissal. You have the option of treating your employment as having been terminated and thus start your claim for severance package.
However, if you plan to accept the change, you should make it clear in writing that you are doing so only in response to this specific situation. You are not agreeing to accept these reduced hours or pay as a term of your contract. Only in this way can you claim constructive dismissal if your employer intends to reduce your working hours or pay again in future.
Q: If I am terminated by my employer during the Covid-19 pandemic, can I get any severance pay?
If you are terminated without cause, you are entitled to termination/severance pay determined by either your Employment Standards Act (“ESA”) minimums or common law reasonable notice. In most cases, a terminated employee could receive a much greater severance package under common law than the minimum standards under the ESA. Common law severance pay is available to any employee, as long as they are not terminated for just cause and as long as they are not subject to a valid termination clause that replaces the common law entitlements.
The common law severance package that an employer should pay to a terminated employee depends on a number of factors. Relevant factors include, inter alia, length of service, age, salary, the position the employee held within the company, whether the employee was actively recruited and the general economy.
During the Covid-19 pandemic, it will be much more difficult for terminated employees to look for alternative employment. This militates in favour of a longer reasonable notice period and thus better severance package.
There is no easy calculation to determine the amount of severance that an employee will receive at common law. Therefore, it is advisable to consult an experienced employment lawyer about this.
Employment issues in connection to the Covid-19 situation can be quite complicated. It is advisable to seek professional help from an experienced employment lawyer. If you are experiencing any employment law issues due to the Covid-19, Top Toronto employment lawyer, Stacey Ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.