Canadian HR Reporter

www.hrreporter.com 11 will be consideration with respect to how an employer handles termination and how an employee responds to it, but then the courts are going to have to consider all of that in this constructive dismissal dialogue." For some employers, the way they handle employee redundancies will also play a role, says Holland. "If an employee is laid off and then recalled and then laid off and then recalled, there's potential for constructive dismissal." However, "when it comes to physical disabilities, illness and you have an employee that is at a higher risk due to underlying health issues such as asthma, breathing problems, auto- immune deficiencies or diseases, if there are employers that are refusing to accommodate those employees, that will be where we see an increase in constructive dismissal claims, because an employer has the duty to work with the employee and accommodate their medical condition to the point of undue hardship," she says. And resolving these issues through the courts should take some time, says Holland. "These issues that we're advocating on behalf of our clients are going to be because employability is going to be severely negatively impacted as a result of anybody who is being terminated around now." Rise of constructive dismissal claims? Employers must be really careful in terms of how they recall workers back to work and what their terms of employment are going to be, says Reshma Kishnani, an associate at Mills & Mills in Toronto. Some employers might be charged with constructive dismissal if they do not fully reinstate workers to their former positions, she says. "If an employer has offered an employee a fair severance package, and the employee doesn't respond appropriately, and vice versa, that kind of conduct will be taken into account. That's the golden question right now and I know different employment lawyers have different views on how this situation is going to be considered by the court." Whether or not the charge is successful may depend on how things were handled, she says. "The court is obligated to look at the circumstances; the behaviour [and] the conduct of the parties will matter. There litigated for years and years to come partly because our court system is now shut down, and there's going to be huge delays. That's been pretty challenging, especially for the smaller employers." Policy, scheduling considerations When considering which workers should be recalled and in what order, employers should be creative in their thinking, says Kishnani. "One of the things that the government is asking people to consider is to stagger work and report times and not to have so many people in a space at the same time. When you have those considerations, the next thing you have to ask yourself is 'Well, if I have a staff or a workforce of 20 people and I've laid them all off, can I recall all 20 back? Can I do it as 10 will report to work three days a week, another 10 will report every three days?' Or every other day you're asked to report to work and then the other days you stay at home and work?" For those workers who simply return to their old positions, they do not need a new employment contract, she says, but that comes with some caveats. "Assuming an employer has properly laid off their employee or that the employee has accepted the layoff, agreed to it and the employer brings them back; the employer is bringing them back based on the current contract." But "if an employer wishes to amend the contract, then fresh consideration will have to be given to the employee with respect to that amendment," says Kishnani. CHRR "If there are employers that are refusing to accommodate those employees, that will be where we see an increase in constructive dismissal claims." Kimberley Holland, Kahane Law Office

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