An Ontario Court has ruled in Bevilacqua v Gracious Living
Corporation, 2016 ONSC 4127 that even in cases where an
employer has complied with the temporary layoff provisions of the
Employment Standards Act, 2000 (the
"Act"), the layoff does not protect the employer
from a successful claim in constructive dismissal by the employee
at common law. In the case, a 15 year Facilities Manager was told
by his employer that he was being temporarily laid off and that he
would be recalled in three months. His company benefits were
continued during the layoff period. While the layoff was done in
accordance with the Act, the employee immediately took the
position that he had been effectively terminated when he was placed
on layoff. The Court agreed with the employee, and held that absent
a provision in the employee's employment contract allowing for
a temporary layoff, a unilateral layoff constituted a constructive
dismissal, regardless of whether it was done in compliance with the
Act. The employee in the case, who was unemployed for 15
months after he was placed on layoff, was less successful with the
remedy that the Court ordered. The employee was entitled to be paid
for the three months he was on layoff, but the Court found that he
had failed to mitigate his damages when he declined the
employer's offer to return to his old job after the layoff
period was over.
Employers who wish to place employees on unpaid layoff should
use this case as a reminder to update their employment agreements
to provide for the right to unilaterally impose temporary layoffs
in accordance with the Employment Standards Act, 2000
without further notice or compensation.
Dentons is the world's first polycentric global law firm. A
top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm
is committed to challenging the status quo in delivering consistent
and uncompromising quality and value in new and inventive ways.
Driven to provide clients a competitive edge, and connected to the
communities where its clients want to do business, Dentons knows
that understanding local cultures is crucial to successfully
completing a deal, resolving a dispute or solving a business
challenge. Now the world's largest law firm, Dentons'
global team builds agile, tailored solutions to meet the local,
national and global needs of private and public clients of any size
in more than 125 locations serving 50-plus countries.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Learn about the issues presented by bringing online sales into the picture. Topics covered will be tips and traps involved in percentage rent negotiations between landlords and tenants. Tracking shoppers as they move through stores. Employees’ use of social media.
The Ontario Court of Appeal has held that the words "accept business", in what the employer intended to be a non-solicitation clause, served to restrict competition and is therefore not merely a non-solicitation clause.
A shelter support worker's persistent pattern of sexual comments to five female coworkers justified his dismissal for cause, despite the coworkers' failure to promptly report the incidents, a labour arbitrator has decided.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).