Employers have taken initiatives to downsize their businesses due to the economic downturns caused by the rampant Covid-19 cases. Therefore, large numbers of employees are placed on a temporary layoff by their employers. In this blog, we will address the issue of what you need to do if you are laid off by your employer.
Understanding the Difference Between Laidoff and Termination
First, it is better for you to understand the difference between layoff and termination.
A layoff refers to a temporary cessation of work. If an employee is laid off, they will temporarily stop working for their employer with the employer agreement still intact. The employee is expected to be called back to work by the employer after a period of time. Unlike a layoff, termination occurs when an employer permanently severs the working relationship with its employees. Once an employee is terminated, the employer does not intend to call them back to work in future.
Check Employment Contract to See if Your Employer Has a Right to Lay Your Off
Then, you have to understand that 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.
Decide Whether to Accept It or Not
After checking your employment contract, you should make a decision as to whether to accept the layoff based on your personal situation, career plans and professional history. You may accept the temporary layoff, if you consider this as your dream job and wish to stay with the employer in the long run.
Talk to Your Employer and Put Everything in Writing
If you agree to a layoff without a contract term allowing the employer to specifically do so, you should talk to your employer and make it clear that you are doing so only in response to this specific situation. You should also follow the conversation with a letter, confirming 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.
Consult a Lawyer About Your Legal Rights
However, if you are prepared to end the employment, it is advisable to consult a lawyer about the constructive dismissal claims and the potential severance package that you may get.
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. 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.
If you are experiencing any employment issues in relation to layoff, Top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997, extension 227.