‘They kicked me to the curb:’ Laid off Ontario workers fight employers demanding constructive layoff over emergency leave program

Phil Van Daalen was an industrial mechanic for air compressor company Comairco when the COVID-19 pandemic began.

He was fired in March 2020 along with other colleagues in London, Ontario, as well as others in branches across the country. Your employer gave you your employment history and told you to apply for employment insurance.

In the first weeks of the pandemic, Van Daalen had no way of knowing that his layoff would last more than a year. His temporary layoff would turn into unpaid infectious disease emergency leave (IDEL), a measure enacted by the Ontario government in response to COVID-19. Similar to a temporary layoff, IDEL allows workers to collect EI and other pandemic supports while guaranteeing a job to return to.

Under normal circumstances, temporary layoffs require companies to officially terminate and pay severance to employees who have been laid off for 13 weeks, or up to 35 in certain cases. With IDEL, there is no time limit for the period of unemployment.

As the months passed, with no indication of when he would be able to return to work, Van Daalen felt that they had done it wrong. So, in the summer of 2020, he decided to take his employer to court for constructive dismissal, asking for lost wages, pending vacation pay, and more.

Van Daalen said he received his vacation pay after the mediation, but nothing else, so he decided to go ahead with the lawsuit, which is ongoing. Comairco declined to comment on the matter.

After being on leave for more than a year, Van Daalen finally found a new job in Montreal in May 2021.

He said he doesn’t think what his former employer did was right.

“They kicked me to the sidewalk,” he said.

Labor lawyers say Van Daalen is one of hundreds, if not thousands, of laid off employees fighting employers over IDEL, claiming they have been constructively fired. But they say it is too early to know if these claims will be successful or if the government’s emergency provision will protect employers more than employees.

On June 1, 2020, the Ontario government temporarily amended the Labor Standards Act (ESA) as it became clear that workers laid off due to COVID-19 could be out of work for longer than expected.

The government introduced the unpaid IDEL to automatically replace COVID-19-related temporary layoffs for non-union workers.

Under this amendment, which was applied retroactively to March 1, 2020, workers could receive emergency federal support while technically employed. Employees can also take unpaid IDEL on a voluntary basis.

These temporary changes to the ESA have been extended multiple times. On Thursday, the Ontario government announced that it would extend the unpaid IDEL again until January 2, 2022.

A Labor Ministry spokesperson said in an email that temporary changes are being extended to support employees and businesses during the fourth wave of COVID-19. (The IDEL paid had already been extended until the end of the year).

“This will help protect people from losing their jobs through no fault of their own and will give employers more time to reopen and return to full capacity,” the spokesperson said.

But Lior Samfiru, labor attorney and co-founding partner at Samfiru Tumarkin LLP, said IDEL doesn’t protect employers to the extent that many might think it does.

Constructive termination is when an employee argues that they have actually been terminated by some other means, such as a prolonged temporary layoff or a severe reduction in hours, and are therefore owed severance pay.

Although IDEL intended to protect employers from constructive termination lawsuits, the government website It states that the temporary rules only affect what constitutes a constructive dismissal under the ESA, but not under customary law.

It is this detail that means that many employees who submit to IDEL may have grounds for a constructive termination lawsuit, Samfiru said. Many are already traveling that path; in fact, the longer IDEL spreads, the more and more they will, he said.

Stuart Rudner, managing partner at Rudner Law, said the legal community does not yet have enough precedent to determine how successful these cases will be.

If more decisions are made and the majority is in favor of the employee or employer, that will help clarify the situation, he said, as well as influence cases resolved out of court.

“It is impossible to predict,” he said.

So far there have been three major court decisions regarding IDEL and the constructive dismissal, Samfiru said. The first decision ruled that IDEL does not take away a person’s right to sue for constructive dismissal under common law. Since then, there have been two more decisions, one in favor of the employee and one in favor of the employer, but the latter is being appealed, Samfiru said.

The appeals court’s decision will have a huge “ripple effect” in the thousands of similar cases currently underway, he said. Rudner agreed.

“If the decision is in favor of the employee, then we will see a flood of additional claims, and if the decision is in favor of the employer, that will really stop those claims,” ​​he said. IDEL is a work-protected leave, Rudner said.

“What that means is that at the end of the license, they have the right to be returned to the same position that they had before the license began,” he explained.

At that point, the employer can decide to bring the employees back, or put them on temporary layoff, or even fire them, Rudner said.

When IDEL ends, Rudner predicts another wave of claims, but this time for wrongful terminations, where individuals will dispute their layoffs and try to get better severance packages.

“There are some companies that have been waiting for the moment … But when that is over, and they have to make a decision, many of them are not going to be able to bring everyone back,” Rudner said. “And that’s when I think we’ll see a whole round of new disputes.” This adds to more constructive layoff claims, he added.

Samfiru believes that there may also be an increase in retaliation claims, depending on which route employers decide to take.

Van Daalen’s story is not uncommon, Samfiru said, and he estimates that he has spoken with hundreds of people who have been on leave for most of the pandemic.

“The good news is that sometime before the end of the year, we should have the last word on this from our appeals court.”


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