Tuesday, June 30, 2020
140Law: Top 10 Legal Headlines for the Week of June 30, 2020
Monday, June 29, 2020
140Law: Legal Headlines for the week of June 29, 2020
Posted by Joy on Monday, June 29, 2020 0 comments
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Monday, June 22, 2020
140Law: Top 10 Legal Headlines for the Week of June 22, 2020
140Law: Legal Headlines for the week of June 22, 2020
Posted by Joy on Monday, June 22, 2020 0 comments
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Monday, June 15, 2020
140Law: Top 10 Legal Headlines for the Week of June 15, 2020
140Law: Legal Headlines for the week of June 15, 2020
Posted by Joy on Monday, June 15, 2020 0 comments
Labels: @wiselaw, 140Law, breaking news, legal headlines, Legal News, legal news feed
Monday, June 08, 2020
140Law: Top 10 Legal Headlines for the Week of June 8, 2020
Posted by Joy on Monday, June 08, 2020 0 comments
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140Law: Legal Headlines for the week of June 8, 2020
Posted by Joy on Monday, June 08, 2020 0 comments
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Friday, June 05, 2020
Statutory Layoffs, Constructive Dismissal and Covid-19
Consider the actions that have been necessary in the employment law context.
With businesses across the province forced to shut down with little to no notice, many employers have had to make the difficult decision to lay off or downsize their workforce to stay financially afloat.
While in the normal course, such actions would be governed by the Employment Standards Act (ESA) and the common law, there are real questions in these unusal, pandemic times about whether the applicable laws will change or be re-interpreted.
It is generally settled law that despite the ESA's explicit layoff provisions, at common law, an employer in Ontario is not permitted to temporarily lay off an employee unless there is an employment contract permitting such action, or implied or express acceptance by the employee.
As the Ontario Court of Appeal affirmed in Elsegood v Cambridge Spring Service 2001 Ltd., 2011 ONCA 831 (CanLII):
[14] At common law, an employer has no right to lay off an employee. Absent an agreement to the contrary, a unilateral layoff by an employer is a substantial change in the employee's employment, and would be a constructive dismissal.If the usual law is strictly applied to Covid times, any employer who has laid off employees to comply with the state of emergency may have constructively dismissed the laid off employees, unless the employer is relying on a layoff provision in an employment contract, or it has the employee’s consent.
To put this in context, as a result of Covid-19 closures, thousands of business across Ontario may have inadvertently severed their employment relationships with their employees, making them liable to pay hefty severance packages or damages awards.
The million dollar question remains, will our courts really allow this to happen, or will exceptions be made in interpreting the usual law of layoffs, in order to address the present reality?
Ontario Regulation 228/20, enacted by the Ford government on May 29, 2020, seems to signal that a new approach to Covid-related employment law claims may emerge.
This Regulation amends the Employment Standards Act to retroactively deem employees whose hours or wages have been temporarily reduced or eliminated due to Covid-19 to be on an infectious disease emergency leave, as opposed to being subject to a statutory layoff or constructive dismissal.
The Regulation, however, does not address the common law of constructive dismissal, nor does it bar an employee from bringing a civil claim for damages for constructive dismissal.
It would not be surprising if the Courts take a cue from the Ford government, finding that temporary layoffs necessitated by Covid-19 did not amount to a constructive dismissal.
On the other hand, such an approach would eliminate an employee’s choice to assess whether an employment relationship has truly been severed. This will not always lead to a fair outcome. Legal advice should be obtained as to your rights and entitlements, if you wish to consider advancing a constructive dismissal claim.
Going back to the basics, the act of unilaterally laying off an employee has typically been considered a constructive dismissal because it repudiates the expectation of continued paid employment. There can be no such expectation if an employer is mandated by law to temporarily shut down its business due to the pandemic. The same cannot be said however, for an employer who seeks to take advantage of circumstances.
Our courts have always favoured a balanced approach when faced with competing interests and concerns.
Perhaps the most likely outcome is for the court to leave the door slightly ajar for exceptional claims of constructive dismissal, which arise during the Covid-19 period, looking closely at the actions and motivation of the parties.
Posted by @wiselaw on Friday, June 05, 2020 0 comments
Labels: constructive dismissal, Employment contract, employment standards act, empoyment law, layoff, ontario employment law, Toronto Employment Lawyers
Monday, June 01, 2020
140Law: Top 10 Legal Headlines for the Week of June 1, 2020
Posted by Joy on Monday, June 01, 2020 0 comments
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140Law: Legal Headlines for the week of June 1, 2020
Posted by Joy on Monday, June 01, 2020 0 comments
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