Canadian Employment Law Today - sample

Canadian Employment Law Today | 7 More Cases Canadian HR Reporter, 2019 People often use the terms "termina- tion" and "layoff" assuming they mean the same thing. While in casual conversation, glossing over the difference may not be im- portant; for an employer, failing to under- stand the difference can present a missed opportunity and create unnecessary risk for your business. Having the legal right to temporarily lay off an employee can provide an employer flexibility to respond to a slowdown or change in business without the need to permanently terminate employment and pay for costly notice periods. However, un- less an employment contract includes an express or implied right to lay off an em- ployee, an employer has no right to do so. If there is no express or implied right, a lay- off may amount to a fundamental breach of the employment contract (constructive dismissal) entitling the employee to notice or pay in lieu and possibly severance pay, as the Ontario Superior Court ruled in Chen v. Sigpro Wireless Inc. Here is an overview of what you need to know. Termination vs. layoff. When an employ- ee is terminated, the relationship between employee and employer ceases to exist. When an employee is laid off, the "employ- er-employee relationship is said to be sus- pended rather than terminated" because there exists the possibility of a return to work. e Supreme Court of Canada in Canada Safeway Ltd v. RWDSU, Local 454, clarified the difference: "While in common parlance the term "layoff" is sometimes used synonymously with termination of the employment rela- tionship, its function in the lexicon of the law is to define a cessation of employment where there is the possibility or expecta- tion of a return to work. e expectation may or may not materialize. But because of this expectation, the employer-employee relationship is said to be suspended rather than terminated." Layoff is a tool — not a right. If a business regularly encounters ebbs and flows or is cyclical or weather dependent, the right to temporarily lay off an employee can be very helpful. However, as noted above, without an express or implied right to lay off an employee the employer has no right to do so. Confusion about this is understandable given that most employment standards legislation in Canada includes some type of layoff language. An employer seeing that language might assume layoff is permitted so long as the legislation is complied with. is is incorrect. For more information see: • Chen v. Sigpro Wireless Inc., [2004] O.T.C. 466 (Ont. S.C.J.). • Canada Safeway Ltd. v. R.W.D.S.U., Local 454, [1998] 1 S.C.R. 1079 (S.C.C.). Jeremy Ambraska and Lauren Ditschun are law students with Sherrard Kuzz LLP in To- ronto. For more information visit www.sher- rardkuzz.com. When an employee is laid off, the 'employer-employee relationship is said to be suspended rather than terminated' because there exists the possibility of a return to work. Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as GM's legal obligations after its plant closure, privacy in the workplace, and dealing with mental injuries to employees. You can view the blog at www.employmentlawtoday.com. Contract must include express right to lay off « from DO YOU KNOW on page 1 CREDIT: BY CHASE4CONCEPT/SHUTTERSTOCK

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