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.