If you have lost your employment due to COVID-19, there are a variety of different avenues available to you to make a claim for lost income.
Constructive dismissal
Does reduction of wages and/or hours due to COVID-19 amount to a constructive dismissal? The courts have issued conflicting opinions.
For more information, see Conflicting Jurisprudence Regarding Whether a COVID-19 Reduction of Wages and/or Hours Amounts to a Constructive Dismissal.
Wrongful dismissal
The maximum amount of damages that you can claim in an action for wrongful dismissal is two years, as the Ontario Court of Appeal has decided. However, as an employee, you also have the duty to mitigate their damages by seeking other employment.
Further reading:
- Employers Must Discharge Their Onus to Prove Failure to Mitigate
- Can I Still Claim my Bonus even though I was Wrongfully Dismissed?
- Income Earned by Wrongfully Dismissed Employees No Longer Automatically Deducted Under the Duty to Mitigate
Canada Labour Code claims
The remedy of "unjust dismissal" under the Canada Labour Code allows for potential reinstatement and also a claim for lost income. Employees must still mitigate their damages, but nonetheless, the claim can be formidable.
Further reading:
- Canada Labour Code Adjudicator Awards Costs in Unjust Dismissal Case
- The Canada Labour Code & Employer Releases
Human Rights claims
In a human rights claim, for example, the lost income claim is based on "what would have happened" had the human rights violation not occurred. This may lead to a dramatic claim for a very extended period. Some human rights cases have allowed for lost income for as many as ten years.
However, sometimes the same concept may lead to a very modest claim. If the employer, for example, can show that the functions of the employee were destined to be terminated due to legitimate business reasons soon after the termination, then the damage claim for lost income will be so limited.
In human rights cases, an employment contract that defines a severance sum will generally have no relevance. However, if the contract sets a defined terminal date, then the damages will very likely be set by that date.
Further reading:
- Fired because of Race? Consider a Human Rights Claim
- General Electric Workers Exposed to Toxic Chemicals for Decades
- Denial of Employee Benefits to Working Seniors: A Charter Violation
Statutory Reprisal (Occupational Health and Safety Act)
Ontario has certain statutes that provide powerful relief to employees who have been terminated or otherwise adversely treated due to their compliance with the terms of statute. The term often used to describe this is "reprisal."
One such example is the Occupational Health and Safety Act which creates reporting requirements of unsafe working conditions and physical and sexual abuse amongst other obligations. It applies to all employers in the province.
The framework of the statute not only prohibits such unfair conduct by an employer but also creates a reverse "onus of proof" upon the employer should the employee choose to challenge such a decision of the employer.
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.
