Facts about temporary layoffs in Ontario your employer doesn’t want you to know

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Temporary layoffs can be unexpected and typically deal a serious blow to a person’s financial stability. When it happens, many people wonder what their rights are and when they’ll get the call to return to work.

A large part of my employment law practice centres on layoffs and securing financial compensation for people left without income when their employment comes to a sudden stop. Here are some things all Ontarians should know about temporary layoffs.

Temporary layoffs are meant to be short-term

A temporary layoff in Ontario happens when an employee’s job is severely cut back or paused by their employer on what is expected to be a short-term basis.

This kind of layoff often coincides with a shortage of work that the employer may be experiencing. For the employee, the layoff means that they are out of work — and without pay — for an indeterminate period.

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Employees don’t have to accept temporary layoffs

An employee does not have to agree to a layoff. Unless it is an accepted part of their job or addressed in an employment contract, a layoff is an illegal change to that person’s job.

If you’re opposed to the layoff, it’s important to indicate this in writing. Otherwise, you risk having a pause in employment become an implied term of the work relationship going forward. You may lose the opportunity to refuse a layoff in the future.

READ MORE: The top 5 termination myths — and what you need to know about being fired from a job

Even if an employee does have an employment contract that allows for temporary layoffs, or if they agreed to one in the past, this does not mean they are without options. Talking to an employment lawyer, like the team at Samfiru Tumarkin LLP, can help determine how to handle the situation.

Temporary layoffs can last for up to 35 weeks in some cases

In Ontario, a company can keep an employee on a temporary layoff for as much as 13 weeks (if the individual is not provided with their benefits) or 35 weeks (if their benefits remain intact during that time).

Once the applicable period of time has passed without a call back to work, the employee is deemed to have been let go permanently and must receive a full severance package.

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READ MORE: How much severance pay should employees get in Ontario? Here’s what the law says

Employees can treat temporary layoffs as constructive dismissals

A worker who does not agree to a temporary layoff has two options: wait until they are called back to work by their employer or treat that layoff as a full termination. The latter is referred to as a constructive dismissal. Employees who have been constructively terminated can pursue a severance package.

READ MORE: HBC employee’s ‘status change’ a lesson in constructive dismissals: employment lawyer

Employees have to return to the same job after temporary layoffs

If an employee is called back to work from a temporary layoff in Ontario, they must be offered the same job they had prior to the break from employment. Their hours, pay and duties must remain untouched.

If the employer has made fundamental changes to the role, the employee can choose to treat it as a constructive dismissal. In that case, they can leave with proper severance, which can be as much as 24 months’ pay depending on certain factors.

READ MORE: Do you lose severance if you don’t sign by your company’s deadline? Lawyer explains why not

Employees have two years from the end of work to pursue a claim

If you don’t get a call from your boss asking you back to the workplace or you’re tired of waiting for the phone to ring, talk to an employment lawyer.

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You have two years to pursue a legal claim for severance, starting from the moment your employment is considered to have ended. But waiting too long could mean you miss out on asserting your rights.

I’ve had cases where individuals waited so long that they almost let the limitation period expire. Despite this, I was still able to get involved and successfully secure a great severance package.

Still sitting on a layoff? Not sure what your rights are?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta and British Columbia. Get the advice you need — and the compensation you deserve.

Jonathan Margolin is an employment lawyer and associate at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.

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