In Pham v. Qualified Metal Fabricators Ltd., 2023 ONCA 255, an appeal to the Ontario Court of Appeal, the Court overturned the trial judge’s finding that because the Plaintiff did not actively protest his layoff for 9 months, that he had in fact accepted the legitimacy off the layoff and thus could not claim that he had been constructively dismissed at the time of the layoff.
The plaintiff was temporarily laid off in March of 2020 and retained a lawyer in December 2020 who promptly sent a demand letter to the Defendant.
The Court stated these principles in deciding whether or not there was condonation.
- The signing of the layoff letter was not not evidence of acceptance of the legality of the layoff, it was merely acknowledgement of receipt of the letter.
- The fact that he claimed constructive dismissal immediately after retaining a lawyer shows that he only became aware of his right to claim constructive dismissal at that time and responded immediately.
- An employee is to be given a reasonable time to assess their legal situation. In this case the Plaintiff had been given a series of layoff notice and seemed to adopt a wait and see approach to see if he would actually be recalled.
- Most importantly, “condonation in the face of a layoff is expressed by positive action. Positive action includes expressed consent to the layoff or expressing a willingness to work before claiming wrongful dismissal such that the employer would reasonably believe that the employee consented to the change in the terms of employment:
- The fact that the employee was not actively at work during the layoff period means that he could not condone the change in his employment.
- “Moreover, there is no requirement for an employee to ask when they might be called back to work before commencing an action for constructive dismissal:“
My Comments:
When an employee is given a temporary layoff notice, there is an implicit promise that the employee will be recalled, otherwise it is a permanent layoff.
In this case, the Plaintiff was given a 13 week layoff notice at the beginning of the pandemic. Surely he was entitled to believe his employer that he would be recalled within that 13 weeks. When it got extended the second time to 35 weeks, the Plaintiff accepted it for a time because again he probably believed that he would be recalled shortly.
But by December he was fed up. He had been on layoff for 9 months. He had now lost faith in his employer’s promise. He went to see a lawyer, was told of his rights, and acted promptly.
If the law was that a failure to respond to a temporary layoff had to be immediately acted upon otherwise it is deemed to be accepted, then employers would be faced with a plethora of lawsuits every time they conducted any layoff.
Moreover, how could one determine when the condonation through silence actually occurred? Is it one day, one month, 6 months? Are we going to add even more uncertainty to the area of employment law?
Surely it is not an onerous burden on employers to require them to obtain the employee’s express consent to their right to layoff, either in the initial employment contract or at the time of the layoff. Employment contracts are two way agreements. Employees certainly don’t have the right to say to their employers ”Hey boss, I am going to take a 6 month leave of absence. See you in the fall sometime. Oh, by the way, I may extend my leave even longer, but I haven’t decided yet.”
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