Infectious disease emergency leave (“IDEL”) and constructive dismissal has been a hot-button issue since IDEL came into effect. Although it is generally accepted that an employee who was laid off under the IDEL provisions of the Employment Standards Act, 2000 (“ESA”) retains a common law right to claim constructive dismissal, an employer could still potentially defend such a claim in cases where the employee condoned the layoff.
The case of Webb v. SDT North America, 2023 ONSC 7170, affirms the law on IDEL and constructive dismissal, and further clarifies the type of conduct required to establish condonation. In particular, the court confirmed that an employee’s silence is not condonation of a layoff.
The plaintiff was a shipper and receiver who also performed limited customer service duties. He was employed with the company for over 13 years and was 55 years old at the time of layoff.
There was no express contractual term allowing the employer to impose a temporary layoff.
On March 22, 2020, the plaintiff was laid off. On March 27, 2020, the employer contacted the plaintiff to ask if he was willing to return to work; he said he was but the employer did not recall him. The employer was later deemed an essential service, and the plaintiff contacted them on May 6 and 7, 2020, to inquire about returning to work. The plaintiff was never recalled, although some of his co-workers were. The plaintiff asserted that he was constructively dismissed, and retained legal counsel to pursue the claim.
First, the Court found that the employee was laid off for pandemic-related reasons, according to the IDEL regulations. There was no evidence pointing to an ulterior motive for the layoff. The Court then considered the impact of the IDEL regulations on the common law. On this point, the Court stated:
 This Court has held that the IDEL provisions do not preclude a common law claim for constructive dismissal (see Fogelman v. IFG, 2021 ONSC 4042 at paras. 46-48 and Coutinho v. Ocular Health Centre Ltd., 2021 ONSC 3076, at paras. 43-44, 46). Both decisions held that IDEL applies to constructive dismissal within the meaning of the ESA and that the IDEL regulation does not affect a claim for constructive dismissal at common law. Each decision relied on the language of s. 8 under the ESA.
 I agree with and adopt that analysis. Therefore, although the layoff meets the definition of IDEL, the Plaintiff maintains a common law right to sue for constructive dismissal.
The Court then turned to whether the plaintiff was constructively dismissed. Citing Pham v. Qualified Metal Fabricators Ltd., 2023 ONCA 255 (“Pham”), the Court found that the employer had no express or implied right to lay the employee off, noting that where there is no express term, a right to layoff will not be readily implied. The Court then considered whether the plaintiff had agreed to, or otherwise condoned, the layoff.
The Court, affirming Pham, stated:
 As for condonation, the Court held at para. 52 that whether an employee objected to fundamental change in the agreement within a reasonable period of time is a fact-specific determination and that an employee is permitted a reasonable period of time to assess contractual changes before they are forced to take an irrevocable legal position.
 Silence is not equivalent to condonation during these reasonable periods: Pham, supra, at para. 55. Condonation or acquiescence must be expressed. There must be positive action that would lead the employer to believe that the employee consented to the terms of employment.
When applied to the facts in this case, the Court held that the plaintiff never condoned the layoff, as there was no positive action accepting the layoff. On the contrary, the plaintiff made timely inquiries regarding when he could return to work, but was never recalled. The plaintiff was awarded 15 months of notice at common law.
This decision further affirms that layoffs constitute constructive dismissals, even when pursuant to IDEL, and that silence does not constitute condonation; condonation requires a positive action.
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