Workers say long layoffs amount to termination; claim right to severance

Phil Van Daalen

PHIL VAN DAALEN IS CALLING BULLSHIT. He says that what started as a “temporary layoff” in March 2020 had actually turned into a job termination after 15 months and that entitles him to severance, vacation pay and other benefits. He’s taking his employer to court to get it.

Van Daalen is suing his former employer for what is called “constructive dismissal”: a strategy employers apply to avoid terminations —and paying severance—by pushing workers to quit using such tactics as a long temporary layoff, severe reduction in hours or responsibilities and many others.

The covid cock-up

Under normal circumstances, temporary layoffs require businesses to officially terminate and pay severance to employees who have been laid off for 13 weeks, or up to 35 in certain cases. All that changed in Ontario with the IDEL (infectious disease emergency leave).

Van Daalen had no way of knowing that his March 2020 layoff would morph into an unpaid IDEL. The IDEL allows workers to collect EI and other pandemic supports while guaranteeing a job to return to.

As the months wore on, with no indication of when he might return to work, Van Daalen felt he’d been wronged. “They just kicked me to the curb,” he said.

So in the summer of 2020, he decided to take his employer to court for constructive dismissal, asking for missed salary, outstanding vacation pay, and more.

Move to protect employers

Though IDEL was intended to protect employers from constructive dismissal lawsuits, the government’s website itself states that the temporary rules only affect what constitutes a constructive dismissal under the Employment Standards Act, but not under common law.

It’s this detail that means many workers put on IDEL may have grounds for a constructive dismissal lawsuit, says employment lawyer Lior Samfiru. Many are already going down that path; in fact, the longer IDEL is extended, more and more will do so, he said.

Stuart Rudner, managing partner at Rudner Law, said the legal community still doesn’t have enough precedent to determine how successful these cases will be.

There have been three major court decisions so far concerning IDEL and constructive dismissal. The first decision ruled that IDEL does not take away a person’s right to sue for constructive dismissal under the common law. The second also ruled for the employee. The third ruling found for the employer—but is under appeal.

IDEL is a job-protected leave, said Rudner. “What that means is that at the end of the leave, they are entitled to be put back in the same position they had before the leave commenced.”

More claims likely

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

“There are some businesses who have just been biding time … But whenever that ends, and they have to make a decision, a lot of them are not going to be able to bring everyone back,” said Rudner. “And that’s when I think we’re gonna see a whole round of new disputes.” This is in addition to more constructive dismissal claims, he added.

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