Temporary Lay Offs And Their Legality

Despite what many people may think, generally speaking an employer does not have an inherent right to temporarily lay off employees. The reason why many may believe otherwise stems from language contained in the Ontario Employment Standards Act. The Act makes specific reference to temporary lay offs and the parameters of how long they may last before turning into a termination. Despite this language, employers must be very careful before making a decision to temporarily lay off an employee.

Temporary Lay Offs – Employer Rights

Typically, the right for an employer to temporarily lay off an employee exists in certain employment industries, such as construction. In order for this right to be implied or automatic however, it either needs to be specifically laid out in the employee’s contract or there needs to be sufficient evidence that the employee is aware there may be a risk that he or she will be laid off. Furthermore, even if an employee acquiesces to being temporarily laid off does not mean that that layoff will be upheld by a Court. In fact, the Ontario Courts have ruled against this notion.

Temporary Lay  Offs Employer Rights - KCY at LAW

High Standard To Be Met For Temporary Lay Offs

The standard that must be met from an employer’s perspective to lay off an employee without the fear of any repercussions can be very high and, as such, employers should consult with a lawyer before implementing any lay offs or series of lay offs. If a Court is not convinced that an employer’s decision to lay off an employee is not proper, the employee may be able to successfully sue the employer for constructive dismissal and be awarded damages flowing from a termination of employment.

Standard to be met for temporary layoffs - KCY at LAW

Legal Advice For Temporary Lay Offs

If you or someone you know has been laid off, or if you are an employer thinking of laying off an employee, contact KCY at LAW at (905) 639-0999 to book your consultation! We will give you the information and advice you need to properly ensure your options are canvassed and your rights are looked after! Call now!

Supreme Court Holds Job Security Is A Right For Non-Unionized Employees Of Federally Regulated Employers

In the very recent case of Wilson v Atomic Energy of Canada Ltd., the Supreme Court of Canada ruled six to three in what has been described as a game-changing decision in employment law and, specifically, for federally regulated employers and employees.

Wilson v Atomic Energy of Canada Ltd

The plaintiff in this case, Mr. Wilson, was a non-unionized employee of Atomic Energy, a federally regulated company. Following four years of continuous employment, Mr. Wilson was terminated after reporting improper procurement practices within the company. While Atomic Energy did not deny terminating Mr. Wilson’s employment on account of his allegations of corruption, it argued that since it had provided Mr. Wilson with a generous severance package his dismissal was legal. Mr. Wilson requested written reasons for his dismissal believing that he was terminated for whistleblowing. Atomic Energy refused to provide specific reasons and simply stated that Mr. Wilson had been terminated on a without cause basis. On appeal, the Federal Court of Appeal upheld the company’s decision, overturning almost forty years of arbitral law.

The Supreme Court’s Ruling will have a Significant Impact on Federally Regulated Employers

The Supreme Court’s subsequent ruling turned on an interpretation of the Canada Labour Code provisions giving federally regulated employees the right to bring a complain to an adjudicator if they believed their dismissal was wrongful or unjust. A key part of the Court majority’s decision was based on the fact that in the 1,740 cases since the Canada Labour Code provisions took effect, adjudicators had ruled in all but 18 cases that employers could not dismiss an employee without cause. The Supreme Court ultimately ruled that non-unionized employees of federally regulated companies are entitled to similar protections regarding dismissals as those given to unionized workers.

This decision will have a significant impact on federally regulated employers as it essentially means that they will be unable to terminate their employees on a without cause basis. The Canadian Labour Congress stated that this will bring accountability and fairness to approximately 500,000 non-unionized employees, preventing their employers from simply terminating them at will. Employers will now have to meet the high threshold test of just cause if they are likely able to terminate their employees.

Are you are a Federally Regulated Company or an Employee of One?

If you are a federally regulated company and have concerns over issues relating to the dismissal of employees, or, if you are an employee of a federally regulated company and believe you have been unjustly dismissed, it is important that you contact a lawyer right away to clarify the options you have and ensure your rights are protected.

Contact KCY at LAW today by calling 905-639-0999 or online and book a consultation.

Potential Future Violation of the ESA Enough to Void Employment Contract

The main objective of a written employment agreement is to provide certainty of the terms and conditions of an employee’s employment.  However, if the agreement contradicts the entitlements set out in the applicable employment standards legislation, such as the Ontario Employment Standards Act, it will be declared void from the outset.

Potential Future Violation of The ESA

In the recent case of Garreton v Complete Innovations Inc. 2016 ONSC 1178, the Court held that a termination clause’s potential future violation of the ESA is sufficient to have the agreement deemed unenforceable.

In that case, Ms. Garreton was employed by Complete Innovations for just over two years.  She was fired for cause after grabbing a co-worker by the wrist for trying to take a bagel during a training session.

Violation of the ESA - Employment Lawyer

The Divisional Court ruled that Ms. Garreton’s employer did not have cause to dismiss her and found that the termination provision contained in her employment agreement was unenforceable, thus entitling her to reasonable notice pursuant to the common law.  Justice Patillo determined that the termination clause in question failed to allow for the payment of statutory severance pay (a requirement of the ESA for those who have worked for that employer for at least 5 years).  Thus, while Ms. Garreton was not entitled to receive severance pay given her length of tenure (just over 2 years), the termination provision would have been unenforceable for an employee with 5 or more years of service.

“Potential violation in the future is sufficient”

In coming to his decision, Justice Patillo stated the following:

“The employment contract must be considered at the time it is executed. If the termination provision is not onside with notice provisions and severance provisions (if applicable) of the Act at the outset, then it is void and unenforceable. Potential violation in the future is sufficient.”

This case proves that employers must ensure that termination pay, notice, severance pay and benefits provisions contained in employment agreements, and in particular in termination clauses, satisfy the minimum standards as set out in the application employment standards legislation, such as the ESA.

Minimum Standards of the ESA

Employment Contract Experts

If you or someone you know has signed an employment contract with a termination clause similar to the one found in Garreton and are unsure as to your rights and entitlements in the event of a termination, we at KCY at LAW have the experience and expertise necessary to effectively assist in handling your case and ensuring your legal rights are properly looked after.

Contact KCY at LAW right now at 905-639-0999 and book a consultation!