11 Jan Constructive dismissals and the COVID-19 pandemic in Canada
The COVID-19 pandemic has created an abnormal number of temporary layoffs, reduction of wages, and decrease of work hours across the entire country. In order to reduce constructive dismissal allegations, the government of Ontario issued Regulation 228/20 to adjust the termination liability under the Employment Standards Act due to the COVID-19 pandemic.
A constructive dismissal can be filed when an employer changes an employee’s work terms or defies the terms of their employment contract and the employee can treat these changes as a termination of employment. If an employee is temporarily laid-off, it has to be written in an employment contract made by the employer. This transaction gives the employee job security because the terms of the agreement are legally binding, and the employer is held responsible to recall the employee at a later date. Employers who do not follow these provisions can be subjected to a constructive dismissal claim.
Regulation 228/20 has made several new provisions that limit the ability for employees to submit a constructive dismissal claim because of the anticipated reductions and temporary lay-offs that are unavoidable for employers during the unpredictability of the COVID-19 pandemic.
Temporary reduction in wages or hours
Regulation 228/20 serves to reduce or eliminate “constructive dismissal” claims when reductions in the workplace take place due to the COVID-19 pandemic. An employer can temporarily reduce hours or wages of an employee, and this regulation prevents the employee from filing a constructive dismissal claim with the Ministry of Labour.
Regulation 228/20 states:
The Regulation provides that the following do not constitute dismissal from March 1, 2020 until six weeks after the COVID-19 pandemic has officially ended:
- A temporary reduction or elimination of an employee’s hours of work by the employer for reasons related to COVID-19.
- A temporary reduction in an employee’s wages by the employer for reasons related to COVID-19.
These reductions are not the same as being laid-off. They are strictly temporary reductions in wages and hours that will come to a close when the pandemic has been managed.
Infectious disease emergency leave
The regulation also has introduced an “infectious disease emergency leave” for employees. It gives employees the right to temporarily stop working (unpaid) if they cannot perform the duties of their work requirements because of or related to the COVID-19 virus. An employee can be assigned to an “infectious disease emergency leave” when their employer decides to advance the employee on temporary leave for the following reasons:
- The individual is being medically investigated, supervised, or treated for the virus.
- The employee is following a COVID-19 order under section 22 or 35 of the Health Promotion and Protection Act
- The employee is following quarantine or isolation protocols issued by a medical professional.
- The employee was told by their employer that they are a threat to other employees due to the possibility that they can expose the workplace to the infectious disease.
- The employee is obligated to take care of someone that had been exposed to the infectious disease, for example, spouse, child, or extended family.
- The employee cannot travel back to Ontario because of the travel restrictions
- The employee is subject to an order that relates to the COVID-19 infectious disease under the “Reopening Ontario Act (ROA)”. For example, if the employee has two jobs and one involves working in a retirement home where the ROA prohibits these caretakers from working anywhere else during this time.
If an employee feels like they have been wrongfully treated by their employer because of a reduction in pay, work hours, or having been placed in temporary emergency leave due to COVID-19, they cannot complain about these changes. This means that employees cannot file a complaint under the Employment Standards Act about their inability to present a constructive dismissal claim. Any complaint that an employee files against their employer or workplace will be revoked.
If you have questions concerning any temporary changes to your employment agreement due to COVID-19 or have questions about receiving a notice that you are on infectious disease emergency leave, contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.