Employment Law FAQs 

The following FAQs are intended to provide answers to the most commonly asked employment law questions received by NCLI. They will be updated periodically as new questions arise.

Federal Layoffs

I am employed by the Federal government or a federally regulated entity. Was my employer allowed to lay me off?

Does the Canada Labour Code apply to me?

The regulations set out in the Canada Labour Code only apply to you if you work in a federally regulated industry. If you are a full-time or part-time employee in industries under federal jurisdiction such as the railways, banking, federal crown corporations, etc., then the Code applies to you.

The regulations set out in the Canada Labour Code only apply to you if you work in a federally regulated industry. If you are a full-time or part-time employee in industries under federal jurisdiction such as the railways, banking, federal crown corporations, etc., then the Code applies to you. This is a helpful infographic that provides a list of federally regulated industries. Another useful page explaining the Canada Labour Code can be found here too.

If your employer is not the Canadian Federal Government or a federally-regulated entity mentioned in the hyperlinks we provide in the paragraph above, you may be a provincially-regulated employee, in which case, please scroll to the  section below.

Was my employer allowed to lay me off?

If your employer has laid you off and your workplace is not unionized (meaning, not represented by a trade union), you should first look at your employment contract. If your employment contract allows your employer to lay you off for a temporary period, make sure that this period is not more than the Canada Labour Code. Your employer is not allowed to contract out of the standard set by the Code. Usually, a temporary lay-off period can last three months or less. If the lay-off exceeds three months, it will only be valid if

  1. your employer notifies you in writing at the time of the lay-off or shortly before that you will be recalled at a fixed date within 6 months and you are then recalled to work; OR
  2. during the time you are laid off, you continue to receive payments from your employer for an amount agreed by you and them; OR
  3. during the time you are laid off, your employer continues to make payments on your behalf to your pension plan; OR
  4. you receive supplementary unemployment benefits or you would be entitled to them but are disqualified under the Employment Insurance Act; OR
  5. if you are unionized, if your lay-off lasts no longer than 12 months and throughout the term of your lay-off, you maintain recall rights pursuant to a collective agreement.
Am I affected by new federal regulations respecting layoffs during COVID-19?

It is important to note that these regulations have been recently changed due to COVID-19.  The Minister of Labour has announced that temporary layoff periods will be extended so that employers have more time to recall their employees.

If you were laid off prior to March 31, 2020, the lay-off period has been extended to December 30, 2020 or six months (whichever comes first) [http://gazette.gc.ca/rp-pr/p2/2020/2020-07-08/html/sor-dors138-eng.html].

If you were laid off between March 31, 2020 and September 30, 2020, the period is extended until December 30, 2020 (unless your employer provided you a later recall date at the time of your lay off).

If your lay-off period had already reached its maximum duration before June 22 (the date on which the regulations were amended), you have the right to termination notice and pay. Remember that a laid-off employee is deemed terminated when they are not called back to work before their lay-off period is elapsed. These amendments have also not been extended for lay-offs that happen after September 30, 2020 as of writing [http://gazette.gc.ca/rp-pr/p2/2020/2020-07-08/html/sor-dors138-eng.html].

    What are my rights and recourses against my employer?

    If your employment contract does not allow your employer to explicitly or implicitly lay you off, you can choose to contest the lay-off decision in a civil proceeding. Without a provision allowing lay-offs through the employment contract or collective bargaining agreement, lay-offs can be considered to be a fundamental change in the employment relationship. However, keep in mind that a judge may rule a lay-off to be a constructive dismissal (thereby ending the employment relationship and entitling you to termination notice and pay). In that case, you would lose the right to return to work.

    If your temporary lay-off period has been exhausted and you have been deemed terminated, you have rights to termination notice and pay. You are considered to be terminated on the first day of the lay-off. You may be entitled to receive pay in lieu of notice and severance pay.

    Under the Canada Labour Code, you are entitled to two weeks’ prior notice or two weeks wages at your regular rate if you have completed at least 3 months of continuous employment. You are also entitled to severance pay if you have completed at least 12 months of continuous employment. You are entitled to two days’ wages for each year you worked for the employer or five days wages (whichever is greater).

    If your employer refuses to pay your termination or severance pay, you can file a complaint with the Labour Program to recover unpaid wages within six months from the last day your employer had to pay you. You can file a complaint here [https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/filing-complaint.html#s01].

      Initiating civil proceedings

      You can also initiate civil proceedings (typically referred to as “going to court”) against your employer. Aside from notice and severance pay, you may be able to recover moral or punitive damages at common law. A court will determine the reasonable notice period you are entitled to based on your particular case and factors such as the length of your employment, age, experience, qualifications and the nature of your work. Your reasonable notice period at common law may be longer than the minimum you are entitled to under the Canada Labour Code.

      If you work for a federally regulated employer, you have an additional remedy to contest your dismissal. If you have worked for your employer for more than 12 months, and you consider your dismissal to be unjust, you can file a complaint under the Unjust Dismissal scheme [https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/complaint-dismissal.html]. You can request your employer to provide a written statement explaining the reasons for your dismissal. Your employer has to reply to you within 15 days. You can also lodge a complaint by filling out this form. You have 90 days from the day were dismissed to file a complaint. Adjudicators have a wider range of remedies available to them than the courts. Therefore, if you file a complaint of unjust dismissal, you may be able to receive back pay and the adjudicator may also order your reinstatement. 

      If you were dismissed due to lack of work or discontinuance of function, this scheme will not apply to you. You can file a complaint, but your employer would have to show that the dismissal was for economic reasons.

      This page has tried to lay out the multiple options before you. Given that each case is different, you may benefit from discussing your case with a lawyer who may be able to advise on which option is better for you.

      Provincial Layoffs (Ontario)

      I am not employed by the Federal government or a federally regulated entity. Was my employer allowed to lay me off?

      Was my employer allowed to lay me off?

      Due to the global COVID-19 pandemic, many individuals have been temporarily laid off of work to limit the spread of the virus. This has left many employees confused regarding what their rights are, and worried that they will face termination during these uncertain times.

      The information below applies only if you are not an employee of the Federal government or a federally-regulated entity. You can find whether you are a federally-regulated entity by looking at this list [https://www.canada.ca/en/services/jobs/workplace/federally-regulated-industries.html]. If still unsure, we offer guidance to determine whether you are a federally-regulated employee here [Federal employee post]

      First, you should determine whether you are:

      • actually considered to be laid off at law, or
      • whether you are considered on infectious disease emergency leave.

      Usually, a temporary layoff in Ontario should be no more than 13 weeks in a period of 20 consecutive weeks, or 35 weeks within a period of 52 weeks so long as you are still receiving substantial payment and benefit contributions from your employer, and you are recalled within a reasonable time.

      If you are not represented by a trade union (unionized), your employer would have to recall you within the time set out in your employment agreement. If you are not represented by a trade union (non-unionized), your employer cannot contract out of temporary layoff periods.

      Ontario Regulation 228/20

      Many employee’s that have been laid off due to COVID-19 are not considered to be on temporary layoff due to the new Ontario Regulation 228/20 [https://www.ontario.ca/laws/regulation/r20228] which was filed on May 29, 2020. Under the Regulation, non-unionized employees who experience a reduction or elimination of work hours after March 1, 2020 are considered to be on temporary infectious disease emergency leave.

      Usually, after the temporary layoff period exhausts itself, employees are considered to be terminated on the first day of the layoff. The new Regulation avoids this so that employees can retain their jobs after the COVID-19 pandemic.

      This Regulation is only operative from March 1, 2020 until six weeks after the emergency orders declared by the Ontario government are terminated. Currently, all emergency orders in Ontario have been extended to July 29, 2020.

      What happens if I am actually laid off and not on infectious disease emergency leave?

      If you have determined that you are actually laid off and not on infectious disease emergency leave, it is important for you to know that unionized employees may be lawfully subject to layoffs of more than 35 weeks within a 52-week period without being considered terminated. If you have the right to be recalled under your employment contract or your collective agreement and you have been laid off for a period more than 35 weeks, you can elect to either:

      • receive either termination pay,
      • receive severance pay, or
      • retain the right to be recalled to work.

      An employer cannot lay you off simply to avoid or delay making termination payments or providing termination notices. If an employer has indicated through their conduct that they have no genuine intention of recalling you to work, courts could consider this to amount to termination. This could occur if you are laid off when there is no genuine lack of work.

      Employers are not required to recall employees, nevertheless. Many temporary layoffs result in termination when employers cannot provide work for employees. However, if you find yourself in such situation, you could be entitled to pay in lieu of notice and could have a claim for wrongful dismissal.

      What are my rights and recourses?

      If you believe your employer has wrongfully laid you off, or your layoff resulted in termination, you may have the following rights and recourses.

      Employees do not have the right to reasonable notice that they will be laid off. However, once the temporary layoff period (see “Was my employer allowed to lay me off” above) is exhausted, they are considered to be terminated on the first day of the layoff. If so, employees are entitled to receive either pay in lieu of notice or severance pay.

      Pay in lieu of notice is a lump sum, equal to the amount of money you would have received during the reasonable notice period for termination. This reasonable notice period varies according to the length of time you have been an employee of your employer.

      Under Ontario’s Employment Standards Act, the reasonable notice period is dependent upon your period of employment. If you worked with that employer for less than one year, you would be entitled to a notice period of at least one week. In contrast, if you worked with that employer for a period of eight years or more, you would be entitled to notice at least eight weeks prior to termination. When your employer is distributing pay in lieu of notice, they must continue to contribute to any benefit plans that you would regularly be entitled to.

      In contrast, employees are entitled to severance pay only if they were employed by that employer for five years or more and the severance either occurred due to permanent discontinuance of business at an establishment resulting in 50 or more employees jobs being severed within 6 months, or the employer has a payroll greater or equal to $2.5 million.

      Severance pay is calculated differently than termination pay. It is calculated by multiplying your wages from a regular work week by the sum of these two numbers: the number of complete years you have been employed by that employer, and the number of months of employment beyond those completed years divided by 12. Put another way, the severance pay you are entitled to is equal to:

       

      If you were terminated without notice, your severance pay would be calculated as if you were employed for the notice period to which you were entitled and did not receive.

        Where can I file a claim?

        If you are unhappy with the situation surrounding your layoff or subsequent termination and believe it violates the Employment Standards Act, you can file a complaint with the Ministry of Labour in a written or electronic form.

        However, note that you cannot file a complaint under the Act if you are also filing a civil proceeding (typically referred to as “going to court”) for wrongful dismissal relating to the same termination. This is the same for complaints filed regarding your entitlement to termination or severance pay.

        If you would rather commence a civil proceeding, you can withdraw your complaint within two weeks after it is filed. All complaints under the Act must be brought forth within two years of the alleged breach of the Act. If you chose to file a complaint under the Act, you will have to represent yourself.

        Note that this route may limit your possible financial recovery, as you cannot claim certain damages that common law can provide such as moral or punitive damages. You may need to consult a lawyer to know which option is best for you.

        The common law will enforce your rights to pay in lieu of notice or severance pay if courts find you are entitled to it. Therefore, if your employer is refusing to distribute pay in lieu of notice after the temporary layoff period is exhausted, you can take recourse under the common law.

        As mentioned above, pay in lieu of notice is contingent upon the notice period you are entitled to. When determining the reasonable notice period, courts are likely to consider all facts at hand, including the length of your service, your age, experience and qualifications, and the nature of your employment. The common law notice period beings to run on the first day of your layoff.

        In unionized workplaces, collective agreements usually anticipate layoffs, which allows employers to impose them. However, in non-unionized workplaces, layoffs longer than the temporary layoff periods may amount to wrongful dismissal.

        If you would rather commence a civil action as opposed to filing a complaint under the Employment Standards Act, it is important to note that the general limitation period on the commencement of civil actions is two years from the date on which the claim was discovered. For wrongful dismissal actions specifically, the cause of action arises on the date of notice of termination or layoff. Therefore, employees can bring a civil proceeding forth within no later than two years from the date they received notice.

        This may be a more beneficial route for employees, as they can claim for moral and punitive damages in addition to wrongful dismissal damages and are not required to self-represent.

        Force Majeure & Frustration

        I am an independent contractor and I cannot fulfill my contract as a result of COVID, what now?
        The COVID-19 pandemic has undoubtedly had unique effects on the jobs of independent contractors. Due to the pandemic, independent contractors may experience challenges when attempting to fulfill their contract.

        Force Majeure

        Independent contractors may be excused from performing a contract if it has a force majeure provision. Force majeure clauses in contracts can remove liability due to unforeseeable circumstances that prevent one from fulfilling a contract. Parties can stipulate in their contract the specific circumstances in which certain obligations that the contract confers are terminated. As a result, parties are relieved from liability for any damages that occur due to the lack of performance.

        If there is no force majeure provision, performance of the contract is interpreted as unconditional, even if performance relies on third parties. These provisions must be expressly stated within the contract.

        Frustration

        Frustration is a contract law principle that can be applied to relieve liability when a contract cannot be performed as planned due to outside circumstances or supervening events beyond the control of the parties.[1] Note that frustration is applied sparingly to maintain commercial certainty.

        Frustration cannot apply if supervening events were foreseeable at the time of the contract’s formation. The burden of proof lies on the party claiming that the contract is frustrated. If the party is successful at proving the contract has been frustrated, the remaining obligations of the parties are immediately and permanently discharged on the date the supervening event occurred. All prior obligations remain intact.

        Frustration and COVID-19

        The COVID-19 pandemic poses new and unanswered questions as to how frustration would apply to contracts where performance has been radically different or sometimes impossible due to the post-virus climate.

        Contracts entered into after the pandemic was declared may not be able rely on the outbreak nor any governmental orders to be considered a supervening event, as they were known about at the time that the parties entered the contract.[2]

        Contracts concluded before the outbreak became a pandemic (March 11, 2020) may be able to rely upon frustration of contract as the outbreak and the responses to it will be considered a supervening event.[3] It will be even more uncertain if frustration can be relied upon for contracts entered into during January-February. It will likely depend upon the obligations under the contract and whether the parties knew or should have known that COVID-19 would drastically change or affect a party’s obligation under the contract.

        [1] See Bang v Sebastian, 2018 ONSC 6226 at para 27.

        [2] Practical Law Canada Commercial Transactions, “COVID-19: Frustration of Contract”, online: Thompson Reuters Practical Law <https://ca.practicallaw.thomsonreuters.com> [Practical Law].

        [3] Ibid.

        Returning to Work

        I am being asked to return to work, now what?
        With the reopening of businesses during the progression of the fight against COVID-19 comes the reality that many workers will be asked to return to work. This may beg you to ask the question: do I have an obligation to return to work?

        While it is the duty of your employer to maintain a safe workplace and you, as an employee, have the right to refuse unsafe work, employees cannot refuse to return to work based on a perceived threat alone. However, as an employee in Ontario, you may be entitled to take a leave of absence under Ontario’s Employment Standards Act (ESA)[1] or request accommodation under the Ontario Human Rights Code (OHRC)[2] if you meet the required criteria.

        [1] https://www.ontario.ca/laws/statute/00e41

        [2] https://www.ontario.ca/laws/statute/90h19

        What health and safety precautions does my employer have to take? (Occupational Health and Safety Act)
        Employers are already required to take every reasonable precaution necessary to maintain a safe workplace under Ontario’s Occupational Health and Safety Act (OHSA).[1] This means that, even without specific mandates requiring employers to take precaution as a result of COVID-19, there is a duty on employers to follow recommendations and standards from officials to mitigate the spread of the virus. This could include but is not limited to providing personal protective equipment (PPE) to employees, educating workers on potential hazards, and maintaining some form of social distancing within the workplace.

        However, each workplace is unique. Because of this, employers have the duty to continuously adapt their own unique health and safety policies and procedures to ensure a safe workplace. In the wake of the COVID-19 pandemic, this means that employers must adapt accordingly to this new hazard. Guidance on appropriate safety mandates for the workplace should be taken from local public health units.

        [1] https://www.ontario.ca/laws/statute/90o01

        What are my rights and recourses if my employer takes insufficient health and safety precautions?
        Under the OHSA[1], every employee in Ontario has the right to refuse unsafe work. Therefore, if you believe that the insufficient health and safety precautions taken by your employer poses a risk to your health, you can refuse to work. However, there is a detailed process in place for a work refusal to be successful.

        For a COVID-19 related refusal, you must demonstrate a subjective belief that the physical condition of the workplace is likely to endanger you. First, you must promptly report the hazard to a supervisor or manager. From this report, the employer should begin an investigation and attempt to mitigate or eliminate the hazard. As an employee, you must be on site for both the complaint and the investigation – you cannot refuse work over the phone or through email.

        If your employer resolves the hazard, then the refusal is resolved, and you should return to work. However, if the hazard cannot be resolved by your employer, then the work refusal moves on to stage two.

        At this time, you, someone representing you or your employer must contact the Ministry of Labour to report the work refusal. A Ministry Inspector will assess whether the hazard is objectively dangerous enough for a work refusal to be accepted. The inspector will likely require material evidence that demonstrates your workplace poses a significantly heightened risk of infection with COVID-19. For example, a large number of employees getting infected at the workplace.

        If the evidence is accepted and the work refusal is successful, the Ministry of Labour will issue orders to the employer to make the necessary changes in the workplace to ensure the hazard is eliminated. In the meantime, you are not required to work in the hazardous workplace. If the employer fails to make the appropriate changes, concerned employees can contact the Ministry of Labour again who will either issue fines or charges until the workplace is made safe again

        [1] Section 43.

        What are my rights and recourses under the Employment Standards Act?
        Under Ontario’s Regulation 228/20 filed under the Act, non-unionized employees who experience a reduction or elimination of work hours after March 1, 2020 are deemed to be on temporary infectious disease emergency leave. Note that this Regulation is only operative from March 1, 2020 to January 2, 2021.

        As Ontario gradually reopens, the temporary infectious disease emergency leave may end but the infectious disease emergency leave under the Act may continue if you are under medical investigation related to COVID-19, if you are under a mandated quarantine by a public health official due to COVID-19, if you are caring for someone that has COVID-19 or if you are unable to return to work due to travel restrictions.[1] However, you will only be entitled to a leave of absence without pay.

        There are other types of leaves available under the Act.

        Family medical leave is available to employees with family members suffering from a medical emergency with a significant risk of death.[2] This type of leave is reserved for serious medical conditions only and must be supported by medical documentation from a licensed practitioner. With this leave, employees can take up to 28 weeks off without pay whilst receiving benefits from their employer.

        Similar to family medical leave is family caregiver leave.[3] This type of leave entitles employees to up to 8 weeks of unpaid leave with benefits in the event that a loved one becomes very ill with a significant medical condition.

        If an employee’s child has contracted COVID-19, there is specific leave available for critically sick children.[4] Being “critically ill” is defined in the statute as a significant change in the baseline health of a minor child or adult whose life is at risk as a result of the illness. If the child in question is a minor, employees can take up to 37 weeks off without pay while retaining benefits. If it is an adult child, the employee is entitled to 17 weeks off.

        Additional short-term leaves available to employees under the Act include sick leave[5] and family responsibility leave.[6] Both provide employees with 3 days of unpaid leave with benefits each calendar year to respond to injury or urgent matters related to loved ones, as long as the employee has been working with that employer for at least two weeks.

        [1] ESA s 50.1 (1.1).

        [2] ESA s 49.1.

        [3] ESA s 49.3.

        [4] ESA s 49.4.

        [5] ESA s 50.

        [6] ESA s 50.0.1.

        What are my rights and recourses under the Human Rights Code?
        The Ontario Human Rights Code (OHRC)[1] outlines prohibited grounds for discrimination in the workplace, including race, ancestry, place or origin, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.[2] If an employee being asked to return back to work believes that it would discriminate against them due to one of the listed reasons, they can seek accommodation from their employer.

        An employee may be able to claim that they are being discriminated against due to their family status. With schools, camps and daycares all closed due to COVID-19, children require parental supervision at home. For some parents, being asked to return to work could interfere with their core parental duties to care for their children.

        To establish that an employer has discriminated against an employee due to their family status, employees claiming this must satisfy the Johnstone test. Therefore, they must prove that:

        1. The child is under their care and supervision;
        2. The childcare obligation at issue engages the individual’s legal responsibility for that child;
        3. The individual has made reasonable efforts to meet their childcare obligations through reasonable alternative solutions, and none are available; and
        4. The recall interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.[3]

        Employees who meet this test may seek accommodation. The analysis is done on a case-by-case basis.

        Employees may be concerned about going back to work because of an existing auto-immune disorder causing them to be immunocompromised, making the risk of contracting COVID-19 far more dangerous.

        These employees would likely be required to provide medical documentation to their employer that outlines their illness and the risks associated with it. Employees may be able to claim his or her auto-immune disorder is a disability under the OHRC and request accommodation. Ultimately, if the employee is able to produce medical documentation indicating a specific illness requires accommodation during the COVID-19 pandemic, the employer would have to accommodate the employee to the point of undue hardship.

        [1] https://www.ontario.ca/laws/statute/90h19

        [2] OHRC s 5.

        [3] Simpson v Pranajen Group Ltd o/a Nimigon Retirement Home, 2019 HRTO 10 (CanLII) at para 27 citing Johnstone. <http://canlii.ca/t/hwwps>.

         

        Prepared by Bradley Smith, Laurent Crépeau, Mehlka Mustansir and Michaila Francesca Graziani. 

        Disclaimer: Although this legal summary has been prepared with the utmost care, we do not assume any liability for the content being correct, complete and up to date. Our summary cannot replace legal advice in individual cases. We are at your disposal for specific legal advice.