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Welcome everyone, this is Amer Mushtaq from You Counsel. Today we’ll talk about some of the common misconceptions about the temporary layoff in Ontario. The lecture is specific to Ontario, the principles are similar in other provinces but if you want to understand the temporary lay-off procedure and law in your own province you must look into your own legislation as well in addition to this lecture. There are some of the common misconceptions about who can be temporary laid off and so we’ll cover all of those issues in today’s lecture.

We’ll begin with a disclaimer that this course is not legal advice, so if you have any specific questions you must contact a lawyer or a paralegal.

Temporary lay-off, the first thing you want to understand is that there is no Common Law Right that is given to an employer to temporarily lay off an employee. The right is provided specifically under the legislation which is called Employment Standards Act 2000 in Ontario, and so under that legislation the employer has a right to temporarily lay off an employee, and then I’ll talk about the extent of that right in the next slide. But essentially in a temporary lay-off an employee’s employment is temporarily interrupted. The employer comes to the employee often times and says “look the business is slow we can’t keep everybody to be employed for a certain time period so we’re temporarily laying you off and then we have a right to recall you so when the business is okay we’ll call you back and then you must come back, and if you don’t come back then you effectively resign or abandon your employment.” Very common in production environment, in factories, in industrial areas, and a lot of times that happens around Christmas time when the business is slow the employer will come to employees and temporarily lay them off from their work for a certain time period and would recall them when the business is okay. So that’s essentially what a temporary lay-off is: it’s a temporary interruption in employment but you are still an employee of the same employer and then the employer has a right to recall you.

And during the time off the temporary lay-off you continue to have your benefits, if there is this pension plans that your part of employer continues to contribute to that, if you’re a part of a medical benefits plan your employer continues to contribute to that, and then the employer make certain payments, some payments are made by Employment Insurance so Service Canada and so you get your record of employment and you file it with Service Canada and you get some money from E.I.

So the key question here is that whom does this temporarily lay-off under Employment Standards Act 2000 apply to? Does it apply to every single employee – and we’re talking about a non-unionized environment – does it apply to every single employee? Can an employer come to any employee and say that “I am temporarily laying you off because of whatever reasons?” Is that a blanket right? And the answer is no, absolutely not. This is a common misconception a lot of people have that just because they’re employed and employer has an inherent right to temporarily lay them of because of their business needs and the answer is No. There must be a specific clause in your Employment Agreement that gives that specific right to the employer to benefit from this section of Employment Standards Act. So if you want to check whether in your situation in your specific contract whether the employer has a right to temporarily lay you off then you want to look at your employment contract, your employment letter and it should have either a specific clause saying, that we retain the right to temporarily lay you off under Employment Standards Act, or you know a sort of a general clause saying that we retain all rights that are provided to us in under the Employment Standards Act 2000 and we will enforce them as necessary. But something to that there has to be specific language in your contract that allows the employer to benefit from temporarily lay-off provision of the Employment Standards Act, absent that clause the employer does not have the right to temporarily lay you off.

The second part that you want to keep in mind is that let’s say if there is no clause in your employment agreement that gives this right to the employer, there may be some argument based upon past practices. So for instance if the employer had temporarily laid you off a year ago or two years ago or some time in the past, and you had not challenge that temporary lay0off and you actually went away and then came back at the time of the recall, the employer may have an argument that by your conduct by accepting the temporary lay-off and coming back at the time of recall you have demonstrated acceptance to a clause in your employment agreement that allows the employer to temporarily lay you off. So it’s important for you to understand that if the employer does not have a right to temporarily lay you off and you are not willing to give that right to the employer then you must challenge when you are temporarily laid off, because if there is no right to temporarily lay you off then that attempt to temporarily lay you off is effectively termination. So you stand up and you raise that issue and you claim that as terminations and then it gets a bit complicated how the issues get resolved, there are practical ways of getting these things resolved, but essentially what you want to keep in mind is that there’s no fundamental, there’s no inherent right, the right comes from a specific clause in your employment agreement that allows the employer to benefit from this provision of the Employment Standards Act. And in some cases the employer may rely on past practice with respect to you, and it’s important for you to understand that if the employer had laid off other employees who are similar in terms of their job duties as you, and they had accepted it but that does not mean that the same practice would apply to you, because every employment contract or agreement is a separate no matter if the job duties are similar.

Okay so one more thing you want to keep in mind is about the time period of temporary lay-off, the provisions in the Employment Standards Act are specific. Section 56 Sub 2 of the E.S.A. actually provides for the time period. And so let’s look at 56 Sub 2 it’s right here, “for the purposes of Clause 1 Sub C, a temporary lay-off is a lay-off of not more than 13 weeks in any period of 20 consecutive weeks or a lay-off more than 13 weeks in any period of 20 consecutive weeks if the lay-off is less than 35 weeks in any period of 52 consecutive weeks.” So what that section is saying is that in 20 consecutive weeks if you are temporarily laid off for 13 weeks or less then that is a temporary lay-off. And if it exceeds 13 weeks in 20 consecutive weeks then you want to look at the next part, which is that does it exceed 35 weeks in the 52 consecutive weeks? So if 52 consecutive weeks is really a year or so if you have been laid off for less than 35 weeks in a year then that could be a temporary lay-off, but if it’s more then that becomes termination and we’ll talk about it. But remember I keep hammering this point that there’s no inherent right that the employer has to do this. The right comes from a specific clause in the employment agreement.

Okay so what happens when the time period of a lay-off exceeds the 13 weeks in 20 consecutive weeks or 35 weeks in 52 consecutive weeks then we look at Section 56 Sub 1 Sub C, which talks about, 56 Sub 1 says, “an employer terminates the employment of an employee for purposes of Section 54 termination, If the employer lays off the employee, lays the employee off for a period longer than the period of a temporary lay-off.” So in other words if the employer has laid you off for more than 13 weeks in 20 consecutive weeks or more than 35 weeks in 52 consecutive weeks then that becomes effectively termination, so the employer doesn’t have to say that it automatically becomes termination.

And another part that you want to remember is Section 56 Sub 5, which says what is the date of termination. So according to that section once the time period exceeds and it automatically becomes terminations your date of terminations is in fact the first day when you were laid off so that becomes important. And it’s an important thing to note because that will have an impact on when your Employment Insurance begins or what your terminations rights are and when do they begin and how do you deal with that. So that’s why I brought this to your attention that the date of termination also is important.

So in conclusion what is it that you want to keep in mind? You always want to understand clearly that there is no automatic right given to an employer to temporarily lay off an employee. The right comes specifically from your employment agreement that you have signed or that you have accepted, and that agreement must have a specific clause that allows the employer to temporarily lay you off, and if there is no clause, then there is no right. Then any time an employer attempts to temporarily lay you off that becomes termination. And so also keep in mind the time period, the two time periods that I mentioned, 13 weeks and 35 weeks because if it exceeds those, if the employer exceeds those two time periods and has not recalled you then you must claim your termination rights. Also remember that at the time when employer temporarily lays you off and the employer has a right to temporarily lay you off, the employer does not need to provide a date of recall at that time, the recall date can be provided later as long as it is within the time constraints that we’ve just talked about.

So in this context keep your termination rights in mind because if it does become an effective termination or even if you’re unsure whether the employer has the right to temporarily lay you off or not you want to think about your termination rights, make sure that you do not undermine your terminations rights which could be significant in some cases and we have other lectures that talk about it.

But this was sort of a brief gist of common issues that arise and misunderstanding about temporary lay-off, hopefully this lecture makes it clear. If you have any comments any questions please share with us and we look forward to seeing you in the next lecture, thank you for watching.