CHAUDHRI: Employees laid off during pandemic may be on brink of big pay day

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Thousands of Canadian employees were laid off for over two years during the pandemic; left to bide their time in a proverbial purgatory.

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Some went on to find new jobs, others sued their employers, while many others patiently waited to be called back to work.

The economic roller coaster introduced by the pandemic, underscored by ever extending lockdowns, led the provincial government to create tools to help employers lessen (or delay) the blow to their businesses. One such tool was IDEL, the infectious disease emergency leave that allowed employers to lay off employees for the entire last two years with lower legal risk.

Employers that laid off employees didn’t have to hand out termination packages during IDEL (unless employees resisted the layoff) and were free to rebuild their businesses without contemporaneously having to manage oppressive labour costs. Employers temporarily relieved themselves of their workforce burdens, pressures that over time seemed to slowly fade, never to return.

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Therein lies the rub.

On July 31, IDEL ends in the province of Ontario. Laid-off employees are now, entitled to their homecoming.

Employers will have to scramble. They will have one of three options: to call employees back to work, place employees on a time-limited layoff, or issue a termination package.

Even if a further layoff is issued, employers will have to, within months, determine if employees are coming back to work at all, and if so, in what role. If no role exists, employers will have to consider other options like termination, which will be accompanied by significant payouts to some employees.

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Many employers have forgotten about their laid-off employees hoping, if not assuming, they have moved on to new lines of work. But even if that is the case, employees who were laid off on IDEL could now be entitled to at least their minimum statutory entitlements or their common-law entitlements.

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If you are an employee who was laid off during IDEL, the length of service at your employer likely continued to accrue during the pandemic and could lead to the right to seek meaningful damages against your employer if you are not recalled to work once IDEL ends.

For example, if you worked at your employer for eight years, you may be entitled to minimum statutory entitlements of 13 weeks (if severance is payable at your employer). If you did not sign an employment agreement, you could be entitled to as much as eight to 10 months of salary, bonus, benefits and pension (if applicable) under the common law.

Employees that are curious about their legal rights flowing from a pandemic layoff should get legal advice now to determine if they are entitled to termination pay. This is case even if your employer fails to contact you after IDEL ends. Your employer may have forgotten, or assumed you have moved on to other work.

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Employers that laid-off employees should assess their liability and their workforce needs. Before hiring a new employee, determine if you can call back to work an employee you previously paid off. It could save you lots of money and lots of time.

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On to your questions this week:

Q. I have worked somewhere for 11 months. I was offered three weeks of pay when I got let go because of downsizing. My HR says this is more than I am entitled to. I know I have worked less than a year and maybe I could get a month of pay if I fight back. Is there a point?

A. Short-service employees could be entitled to significant damages on termination. It isn’t unusual for short-term employees to obtain three to four months of pay and benefit continuation on termination. Don’t assume you are entitled to much lower payouts just because of your length of service, especially if you haven’t signed an employment agreement with a limiting termination clause. When no employment agreement containing an enforceable termination clause exists, the legal test for wrongful dismissal damages is: how long it will take you to find a similar job at a similar level of pay. If three weeks is too little for you to find a comparable, it may be worth it to pursue something more reasonable for you.

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Q. As a small business owner, I find the summers the hardest. With long weekends every month, I find myself short-staffed with extended weekends, requests for personal days and sick days. How can I take back some control without hurting my team dynamic?

A. Ask your team to take accountability if they will be away and work with their colleagues to take on their work responsibilities during absences. When teammates appreciate the impact they are leaving on their peers that can push them to rethink short-notice absences. Also, consider implementing a vacation/personal day policy that requires employees to seek pre-approval before booking time off. That can help make sure you have coverage even during popular vacation weeks.

Have a workplace issue? Maybe I can help! Email me at [email protected] and your question may be featured in a future article.

The contents of this article is general information only and is not legal advice.

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