LAYOFF NOT LEGAL AFTER 22 YEARS
QUESTION: After 22 years of uninterrupted service, my employer has advised me that I am on temporary lay-off with no set date for recall to work. While my boss was telling me this, he as much as admitted that they were simply trying to delay having to pay me severance. Can they do this?
ANSWER: Only if you let them. If there is no hope of your returning to work, I would suggest that you immediately consult an employment lawyer. Do not bother phoning the Ministry of Labour. They will tell you that according to the Employment Standards Act this action is quite legal. They are correct. The courts, however, look at this situation quite differently. Ontario courts have repeatedly held that unless there is an explicit or implied term of the employment contract that you can be laid off without notice, a lay-off is a termination regardless of what the Employment Standards Act says.
I have seen many situations like this where unsophisticated employers think they are acting legally because they have taken their advice from the Ministry of Labour. They are unaware, however, that the common law relating to wrongful dismissal is quite a different matter. Don=t make the same mistake your employer did. The difficulty the people at the Ministry of Labour have is that they are not allowed to give legal advice. They are only allowed to tell you what their statute says. It says that you can be laid off for up to 35 weeks with your benefits continued without it being deemed to be a termination. Your right to termination and severance pay, the minimum payments required by the Employment Standards Act, are not triggered until that 35 weeks is over. If benefits are not continued you only have to wait 13 weeks.
Regardless of whether or not benefits are continued, however, the courts see any lay-off after 22 years of uninterrupted service as a termination which will trigger your maximum entitlements under the common law to reasonable notice.
My experience is that once the employer receives a demand letter from an employment lawyer and is provoked to actually seek appropriate legal counsel, they realize the error of their ways and cough up a severance package.
As published in the Hamilton Spectator, March 18, 2002