Right now employment lawyers are talking, debating and especially ZOOMING about various employment issues that have arisen since this pandemic started.
I want to look down the road a few months when hopefully the pandemic will be on the decline. I think that the following legal issues and trends will arise and will need to be resolved:
- The longer these temporary layoffs continue the more employees will seriously look at the temporary layoff = termination argument.
- After 13 weeks, many employers will not have recalled employees and either don’t have benefits they could continue or fail to do so, thereby triggering the deemed termination provisions of the ESA.
- Even if they are recalled and return to work, could the employee still sue for the lost wages on the basis that there was no express or implied term of employment regarding layoff?
- Will the frustration defence apply to only those businesses that were forced to close due to Government edict?
- Would class actions apply for both termination cases and unpaid wages during layoff cases?
- Does a refusal to accept a recall bar the employee from still suing for the lost wages up until the time of the recall?
- If an employee accepted a recall but still sued for lost wages, could they be terminated for just cause?
- Is there any realistic duty to mitigate during the pandemic or do Plaintiffs get a mitigation holiday?
- We all know that EI is not a deduction from wrongful dismissal damages (because the employee ultimately has to repay their EI), but what about the new Canadian Emergency Response Benefit (CERB)? Each worker could receive up to about $7,500. I have not looked at the CERB legislation, but assuming it has no offset provision like EI, could the employer in a wrongful dismissal case claim a setoff for the CERB amount?
- Will notice periods go up because it will be more difficult to find a job or will they go down because employers are seen to be truly suffering and need a break?
I invite from you both your comments as well as other topics that you think will arise.
Stay Healthy
Barry B. Fisher LL.B.
Barry B. Fisher, LL.B., is a mediator and arbitrator of both employment and labour relations matters. He offers three forms of ADR based on clients’ needs: Mediation, Arbitration and Med/Arb. Barry is from the evaluative school of mediation and brings his over 30 years' experience as an employment lawyer and legal author to the dispute. In addition to his knowledge of the legal issues involved in these disputes, he also has a deep understanding of the psychological factors that motivate both employees and employers. By combining these two skills, Barry is able to achieve a settlement rate of over 80% of the disputes that he mediates.
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HI Barry,
Given the Emergency Order in Ontario, and the introduction of Ontario Regulation 73/20 would not those actions relieve against the ESA 13 week deemed termination threshold?
The ESA was not authored with the current circumstances being contemplated and given the government put into place employment protections, the ESA lay-off periods prescribed if adhered to would only harm an employer’s ability to remain financially viable, or harm the employer’s ability to recall / rehire employees who as a result of the pandemic were laid off and then deemed terminated.
Emergency Management and Civil Protection Act
ONTARIO REGULATION 73/20
ORDER UNDER SUBSECTION 7.1 (2) OF THE ACT
Consolidation Period: From March 20, 2020 to the e-Laws currency date.
No amendments.
This is the English version of a bilingual regulation.
Whereas an emergency has been declared pursuant to Order in Council 518/2020 (Ontario Regulation 50/20) on March 17, 2020 at 7:30 a.m. Toronto time pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act (the “Act”);
And Whereas the criteria set out in subsection 7.1 (2) of the Act have been satisfied;
Now Therefore, an Order is made pursuant to subsection 7.1 (2) of the Act, the terms of which Order are the following:
1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.
2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.
The duration of this Order is subject to any renewal required under subsection 7.1 (4) and, if applicable, subsection 7.1 (5) of the Act