Canadian Employment Law Today

ies greatly from province to province. e second, and more common, prob- lem is that employers mistakenly assume that they have the right to temporarily lay off the employee in the first place. As men- tioned above, while the legislation explicitly references temporary layoffs and how layoffs must be conducted, the legislation does not give the employee the right to impose such a layoff. e right to temporarily lay off an employee generally stems from the employ - ee's written employment agreement. Courts and employment/labour standards boards have consistently held that in the absence of a contractual right to lay off a particular em - ployee — or in rare cases, where layoffs are a common industry practice — a temporary layoff, even if recalled within the specified time limits, will constitute a constructive dismissal regardless of whether the layoff was conducted in accordance with the leg - islation. An employee's successful construc- tive dismissal claim may prove to be a costly exercise for employers, giving rise to termi- nation and severance pay, including, where applicable, common law reasonable notice. erefore, in order to avoid any uncertainty surrounding temporary layoffs, it is recom - mended to include a temporary layoff provi- sion in every employment contract (coupled with an enforceable termination provision). Provided such a provision is included in an otherwise enforceable employment agree - ment, something similar to what is set out below should provide for the 'right' employ- ers need to temporarily layoff any given em- ployee: Here's and example of a temporary layoff provision: "Temporary layoffs Due to the nature of the business, there may be slowdowns in work during various times throughout the year or other cir- cumstances may arise where the company may be required, in its sole discretion, to provide you with a temporary layoff. You acknowledge and agree that such tem- porary layoffs, so long as they are in ac- cordance with the applicable minimum provincial employment standards legisla- tion, shall not constitute a termination of or constructive dismissal from your em- ployment. In the event that you are not recalled within the applicable time limits prescribed by the applicable provincial minimum employment standards legisla- tion, your employment will be deemed to have been terminated and the company will comply with its obligations under the termination provision set out in this agree- ment. Further, in the event that you do not return from layoff within a reasonable pe- riod once recalled, you will be deemed to have resigned and/or abandoned your em- ployment with the company." When an employer has the right to tem- porarily lay off an employee, provides notice (where applicable) and recalls the employee within the required time limits, it will not owe severance and termination payments. Further, should an employee fail to return from layoff within a reasonable period of time, she will be deemed to have quit and will not be owed anything beyond out - standing wages and vacation pay. When an employer fails to recall an employee before the deadline imposed by the legislation, the employee is considered to be permanently laid off and will be eligible for notice, and where applicable severance pay and com - mon law reasonable notice. Understanding the rules and having the appropriate contractual provision in place will go a long way towards eliminating the uncertainty and cost associated with getting temporary layoffs wrong. Canadian HR Reporter, a Thomson Reuters business 2018 June 20, 2018 | Canadian Employment Law Today CREDIT: ANDREY_POPOV/SHUTTERSTOCK ABOUT THE AUTHOR Alex Kowal Alex Kowal is a legal advisor with e2r Solutions in Toronto. He can be reached at (416) 867-9155 or akowal@e2rsolutions.com. The right to lay off, along with proper notice and recall, will avoid severance payments.

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