Millions of Canadians have either lost their jobs or been placed on temporary layoffs since the start of the COVID-19 pandemic.
Being placed on a temporary layoff without your consent — and without contractual terms allowing your employer to do so — is illegal and amounts to a constructive dismissal. If you are constructively dismissed, you are entitled to a severance package based on your age, length of service and the nature of your position.
But what can you do if your employer tells you that you’re going to be placed on a layoff? Here are the five steps to take.
1. Learn about the terms of your employment contract
It’s best to review an employment contract before starting work, but many people don’t. If you have not looked at your employment contract since you started working, find it and read it.
Look for terms that allow the employer to place you on a temporary layoff. If you are having trouble locating the terms, or do not understand them, one of our lawyers or paralegals would be happy to book a consultation with you. If those terms are in the contract, we can tell you whether or not that clause is binding.
Once you have determined that there are no terms allowing your employer to place you on a layoff, move to the next section.
2. Figure out how you want to handle the layoff
Depending on your personal situation or professional history, it may make sense to remain with an employer even if they have placed you on a temporary layoff.
For example, maybe you are getting laid off from your dream job, and you don’t want to burn a bridge with your employer by claiming constructive dismissal. In this case, you could choose to accept the temporary layoff.
3. Talk to your employer
If you don’t want to accept the temporary layoff and you’re prepared to end your employment, have a verbal conversation.
Tell your employer that you understand that the terms of your employment do not allow them to place you on a layoff, and that if your employer is going to force you not to come to work, you will claim constructive dismissal and pursue your full severance entitlements.
If your employer is not willing to pay severance, move on to the next step.
4. Confirm everything in writing
Immediately after the conversation, tell your employer in writing, either by email or letter, that you refuse to accept the layoff. Your letter should reference the date of your conversation, the fact that your employment agreement doesn’t grant them the ability to lay you off, and that you plan to claim constructive dismissal.
If you’re not sure what to write, here’s a sample email written by a lawyer at my firm that you can use.
5. Get your severance package
Find out how much severance pay you are owed by using our team’s Pocket Employment Lawyer tool.
Contact our team immediately to ensure that you secure a full severance package tailored to your situation. It should take into account factors like your time with the company, age, position and salary.
It’s important to understand how much compensation you are owed. Our years of experience representing tens of thousands of clients across Canada have shown us that employers consistently offer inadequate severance packages.
If your severance offer fails to come close to what you’re actually owed, we can help.
Have you been laid off due to COVID-19? Do you want to treat the change to your job as a constructive dismissal?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve — from the most positively reviewed employment law firm in the country.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.