Continuity of Employment

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Continuity of Employment is an Employment Standards Act (ESA) provision that ensures that an employee’s past employment is recognized in the event that the business they work for is sold to a new owner and the employee continues to work for the business under this new ownership.

The ESA’s continuity provisions also apply to an employee of a building services provider that “no longer holds the contract at the building where the employee works and the employee is hired to work for the new provider at the same location.”

A building services provider is a company that provides food services, cleaning or security for a premises. It may also provide a parking garage, property management, or concession stand services related to a premises and those on it.

Why does Continuity of Employment matter?

Most employees are entitled to various leaves of absence, notice of termination and severance pay. However, most of these benefits are accessible only after they have worked a certain period of time with an employer. What’s more, the scope of these benefits is often related to the employee’s length of service with their employer.

Continuity provisions ensure that these benefits are not re-set in the event that a business or building services provider changes hands of ownership but an employee continues their work with the new owner. Because of these provisions, the change of business ownership does not constitute the end of employment and beginning of another for ongoing employees. Continuity provisions ensure that employment and its accrued benefits are transferred along with the sale of a business or building services provider so that an employee is credited for the length of their past service.

The below examples may offer some clarification.

Example 1

Joy has worked for a local convenience shop for the past seven years. Then, one day the shop is sold so original owner can retire. The new shop owner is willing to keep Joy on as an employee and Joy wishes to keep working for the shop under the new ownership. Then, two years after the business’s transfer Joy’s employment is terminated due to the need to downsize. Upon termination, Joy will be entitled to eight weeks’ notice – recognizing her seven years of employment with the shop’s first own and her two years of employment with its subsequent owner, not just two weeks notice for her two years with the new owner.

Example 2

Amal has worked for Squeaky Kleen as a cleaner for three years. Squeaky Kleen has a contract with a downtown stadium to provide cleaning services for the premises. After two years’ employment with Squeaky Kleen, the company’s contract with the stadium is complete and the stadium decides to pursue a new contract with the cleaning company Scrub-a-Dub. Scrub-a-Dub hires Amal and she continues to work as a cleaner at the stadium. In this case, continuity provisions would be applied and Amal’s employment benefits, such as vacation time a notice entitlements, would continue to accrue.

The 13-Week Exception

Continuity provisions do not apply if there is a pause of more than 13 weeks of employment between the time employment with one employer ends and the employment the new employer begins.

For example, if Susu has worked for a restaurant for seven years and then that restaurant is sold to a new owner and this new owner wants to do more of the work herself and chooses not to hire Susu, Susu’s employment will have ended. However, if, 18 weeks later, the new owner realizes she needs more staff and decides to hire Susu, Susu will not be entitled to continuity of employment provisions and she will be starting fresh in terms of her entitlements as an employee of the new restaurant owner.

The employment law team at KCY at LAW can help both employers and employees navigate issues concerning continuity of employment and all other matters concerning the workplace relationship between employers and employees. Call us at 905-639-0999 or click here to book your consultation.

Temporary Layoffs – Guide For Employers & Employees

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You were laid off? Oh no! That’s awful. I’m so sorry. You know what, they never appreciated you the way you deserve. What a lousy bunch of – temporarily? Ohhhh. Huh. So, you’re not fired? Ok. Refresh my memory on this whole temporary layoff thing!

What Is A Temporary Layoff?

Chances are, you’ve heard of temporary layoffs. Maybe you’ve wondered if this could happen to you and, if it did, what exactly that would mean.

A temporary layoff is the cutting back or complete cessation of an employee’s employment with the understanding that they will be called back to their full-time position within a specified period of time. A temporarily laid off individual is still considered an employee, even if they are not working. This can mean that they are not working at all, or even simply earning less than half of their regular wages.

Temporary Layoffs – A Solution for Hard Times

A temporary layoff is a way mitigate economic hardship for both employer and employees. Temporary layoffs are often brought on by things like economic downturn, shortages of work and seasonal employment.

Temporary layoffs are most common in union environments where collective bargaining agreements determine the parameters of a layoff such as which employees are the first to return to work.

A temporary layoff allows employers to avoid severance or termination costs as long as the employee is recalled to work within 13 weeks of the layoff’s commencement. Though it would certainly be appreciated by their employees, employers have no obligation to provide notice of a layoff. Additionally, employers are not required to give termination notice until the last day of the layoff should it become clear that the layoff will have to become permanent.

Contractual Agreements and Temporary Layoffs

The parameters of temporary layoffs are set out in the Employment Standards Act (ESA). However, the ESA doesn’t give employers the right to enact them. The right to temporarily layoff an employee must be contractually stated, either in the employment contract or the collective bargaining agreement.

If an employee is temporarily laid off without a provision for this in their contract, the layoff would be considered a constructive dismissal and the employee would be entitled to seek damages for wrongful dismissal.

Wrongful dismissal charges may be avoided if the laid off employee is immediately recalled to their former position. Furthermore, some courts have found that employees who refuse to return to their position after a non-contractual layoff will be found to have failed in their duty to mitigate their damages.

If the power to perform temporary layoffs was not in written agreement at the time of hire and an employer wishes to pursue this option, they should approach their employee with a written proposal for a temporary layoff. It is possible that the employee will choose this over termination, especially since employees can usually collect Employment Insurance benefits during a layoff.

How Long Can Temporary Layoffs Last?

A temporary layoff can last up to 13 weeks in a consecutive 20-week period. However, if a layoff exceeds this 13-week period it will become a termination at which point the employee will be entitled to termination pay in lieu of notice with the first day of the layoff becoming the date of termination.

However, the ESA provides that a temporary layoff may be extended to as long as 35 weeks if:

  • The employee continues to receive substantial payments from the employer,
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,
  • the employee receives supplementary unemployment benefits,
  • the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,
  • the employer recalls the employee within the time approved by the Director, or
  • in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

If an employee quits before a layoff is over they are not owed severance or termination packages but may still be entitled to accrued benefits such as vacation pay.

Temporary Layoff Legal Experts

Employers should always seek legal counsel before temporarily laying off an employee. To speak with an experienced employment lawyer about temporary layoffs or any other employment law matter, call us at 905-639-0999 or click here to book your consultation.

Illegal Interview Questions: What They Are And What To Do About Them

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Are you married? How old are you? How’s your health? Have you ever been arrested? What country are you from? Do you like to drink?

These are probably not questions you want to be asked by someone you barely know, let alone by someone determining your future employment. These prying inquiries may be a faux-pas in polite conversation but they are an absolute no-go in the context of a job interview.

Illegal Interview Questions

Sometimes, versions of these questions may come up casually and innocently in the context of a job interview as employers want to make sure that you will also be a good fit for the company. However, Canadian human rights law prohibits interviewers to ask questions concerning:

  • Country/place of origin and citizenship status
  • Religion, faith or creed
  • Age
  • Gender or sexual orientation
  • Race or ethnicity
  • Family structure, children or marital status
  • Mental or physical health and disability
  • Appearance, height and weight
  • Pardoned offences

With very limited exceptions, it is forbidden to ask questions about any of these topics at any point in the hiring process. Questions should only seek information relevant to the candidate’s ability to perform the job for which they are applying.

How To Deal With Illegal Questions During An Interview

In interviews, passing references to some of these topics may come up – “sorry to delay, my kid is sick and was on the phone, you got kids?”

It is also regrettably possible that an interviewer may make glaringly inappropriate inquiries – “We’re looking for someone committed, do you plan on having children in the future?”

It is up to you to decide in that moment how you want to deal with the situation. Depending on the circumstances, you might not want to stop the interview in its tracks and instead decide to deflect or even directly answer the question. Some options when confronted with this situation are:

  1. “My [family status/country of origin etc.] does not affect my ability to perform this job.”
  2. “I’d prefer not to answer this question unless there is a particular reason why it is relevant.”
  3. “Can you please explain to me how this is applicable to my performance of the job?”

The trouble with certain inappropriate questions is that, even if they were asked in passing and without mal-intent, they leave open the question of what role your answers to them played in the hiring process.

Kartuzova v HMA Pharmacy Ltd.

According to the Ontario Human Rights Tribunal (OHRT), simply asking improper questions is enough to prove discrimination. Such was the case with Kartuzova v HMA Pharmacy Ltd. In this case, Kartuzova applied for a position as a pharmacy technician and was denied the job after an interview ended suddenly following questions about her family and marital status, financial situation, and how she came to Canada. Kartuzova said she had felt obligated to answer these questions and that the tone of what had otherwise been a very positive interview changed abruptly following her answers. The OHRT ruled that the questions Kartuzova had been asked were in violation of the Human Rights Code and ordered the pharmacy to pay her $4,000 for loss of dignity and $496.13 for lost wages.

Employment Law Experts

If you have been asked inappropriate or discriminatory questions during an interview that you felt affected your employment offer, KCY at LAW can help you to register a claim with the OHRT to seek compensation for your lost opportunity. Call us at 905-639-0999 or click here to book your consultation.