| Somehow, it has a better ring to it. For most | | | | Board”) provides for a 13 week lay-off period |
| Employees being “Laid-off” is a great deal | | | | during which a moratorium is imposed upon the actions |
| easier to swallow after long and faithful years of | | | | of Employment Standards Officers from seeking |
| service than a pink slip with the words | | | | compensation under the Act. However, this only |
| “Terminated”, “Dismissed” or | | | | applies to the minimum statutory termination and |
| “Fired”. Certainly, the term “Laid-off” has | | | | severance rights set out in the legislation. The |
| connotations that the decision was reached due to | | | | important thing to remember is that the Employee’s |
| circumstances beyond the control of the Employer | | | | Common Law entitlements to claim for wrongful |
| and with no fault of the Employee. The lack of cash | | | | dismissal based on age, length of service and status |
| flow and shortage of work are the causes of doom, | | | | override the minimums under the Employment |
| not the Employee’s performance, or so the story is | | | | Standards Act, 2000. For example, a mid-management |
| told. However, this cloud has so silver lining. In fact, | | | | Employee, age 50 with 12 years seniority, is entitled to |
| many Employers prefer to characterize the termination | | | | 8 weeks under the Employment Standards Act, 2000, |
| of employment as a “lay-off” out of genuine | | | | but would be entitled to 12 months at common law. |
| sincerity and an attempt to lessen the emotional pain | | | | In fact, an Employee who is “Laid-off’ without |
| of losing one’s job. | | | | recall may have greater rights than the circumstances |
| However, there is often a darker hidden agenda to this | | | | of an ordinary dismissal. In recent decision of Cagigal v. |
| characterization, designed to guard the Employer’s | | | | Mill Dining Lounge Ltd. a Manager of a restaurant with |
| interests at the expense of the Employee’s rights: | | | | three (3) years of service sued for wrongful dismissal. |
| On the one hand, there is a subtle message. If the | | | | He had been laid off in March but only told by the |
| Employee toughs it out, accepts the situation, keeps | | | | Employer in August that there was no longer a job for |
| the peace and above all, does not seek legal help, the | | | | him. The Ontario Court of Justice found that the |
| situation may be temporary and there will be a chance | | | | Employer did not act reasonably in failing to inform the |
| of recall, at which time the status quo will be | | | | Employee that he would be dismissed during the |
| re-instated. It is only natural to hope that the upheaval | | | | period of lay-off. Accordingly, the five (5) months of |
| is only temporary. Especially after long service, no one | | | | lay-off were added to the three (3) months of normal |
| wants to set out on the unknown of a new | | | | severance for a total of eight (8). The court, in effect, |
| relationship. | | | | said that it is unfair to lead someone along when there |
| When the weeks melt into months, and no recall | | | | is little or no possibility of recall. This notion was |
| arrives, the Employee slowly realizes that he or she | | | | expanded upon by the Supreme Court of Canada in |
| has been duped into a false expectation. In the | | | | the famous Wallace decision. Taking its lead , in |
| meantime, a precious opportunity has been lost in | | | | Ontario and other Canadian jurisdictions the Courts |
| seeking alternate permanent employment and most | | | | have gone even further. In the leading case of |
| importantly, severance entitlements. | | | | Martellacci v CFX Inc. * for example, the Court |
| With regard to the latter, the Employer’s message | | | | definitively upheld the principal that the 13 week rule is |
| is much less subtle. Call the “Labour Board” | | | | no bar to wrongful dismissal and decisively penalized |
| Then an Employee is told after enquiring about | | | | an Employer for refusing to provide any compensation |
| entitlements “We can lay you off for 13 weeks and | | | | when it refused to return the laid off Employee (a |
| we don’t have to pay you a dime”. In the interim, | | | | Purchasing manager) to her pre “lay off” |
| as the bills mount, the Employment Insurance wanes | | | | position. |
| and nothing positive is done to obtain his/her rights, the | | | | In summary, Employers must inform their laid-off |
| Employee waits like a hopeful jilted lover. Of course | | | | Employees of their true intentions so that the |
| the call never comes. If the Employer had been up | | | | Employees can get on with life and find suitable |
| front enough to tell it like it is, being indefinitely laid off is | | | | alternate employment, if not, the consequences will be |
| a euphemism for being fired without cause, a bitter pill | | | | an enhanced severance package for “ bad faith |
| with a sugar coating. | | | | “ dismissal. |
| There is a light at the end of the tunnel. In Ontario as in | | | | A rose by any other name smells as sweet, except in |
| all Provinces in Canada, every Employee who is | | | | Employment Law. If the Employer’s intentions are |
| terminated without just cause is entitled to reasonable | | | | to lessen the psychological blow of a dismissal, the |
| notice of termination, or severance In lieu of notice. The | | | | way not to do it is by trying to mislead the Employee |
| amount of notice is based primarily on 3 main factors | | | | into believing that a lay-off has some special status |
| established over 30 years of judicial decisions known | | | | and thereby avoiding its obligations. If the Employer |
| as Common Law: age, position and length of service. | | | | must reduce the workforce for legitimate financial |
| There is no special status for “Lay-off” under | | | | reasons, most Employees will understand. What they |
| Common Law; a lay-off is a breach of the | | | | cannot understand and the Courts will not tolerate, is |
| Employee’s unwritten contract. Any non-unionized | | | | some less than straight-forward attempt to |
| Employee can claim compensation for wrongful | | | | characterize a lay-off as anything else than what it is, |
| dismissal from the day he receives an indefinite lay-off | | | | a termination of employment for which the Employee |
| notice and the Employer refuses or is unable to | | | | is entitled to notice or compensation on termination |
| provide the date of recall. What about the 13 week | | | | when they need it most. |
| rule? It is true that the Employment Standards Act, | | | | * the writer was Counsel for the Employee in this |
| 2000 (The Ministry of Labour “The Labour | | | | matter. |