THE QUESTION
I was laid off because of a shortage of work. The company said they would let me know if the situation changes. But two months after I was let go, I saw a job posting for my exact role. Does the company have an obligation to rehire me first if they said they would? Or can I sue for damages if I don’t want to work there again? Because, obviously they don’t want to have me back. What are my legal options?
THE FIRST ANSWER
Jason Edwards, associate, Pink Larkin, Halifax
What you are describing is not at all unusual. Many employees were not recalled after facing layoffs in 2020 in response to the pandemic. Unfortunately, for most non-union employees, there is no obligation for an employer to recall employees who are on lay-off in any particular order, or at all, unless there is something in their employment contract that creates such an obligation.
Unless you have some reason to believe the employer will be recalling you to work, you should start looking for another job. You should also consider asking your former employer for compensation in the form of pay in lieu of notice.
The amount of pay in lieu of notice you are owed might be set out in your employment contract. Employment contracts often contain a termination clause that sets out how much notice of termination, or pay in lieu of notice, the employer owes the employee.
If there is no termination clause in your employment contract, you are owed “reasonable” notice to find alternative employment. What is “reasonable” is usually four to six weeks’ notice per year of service.
If you are going to pursue pay in lieu of notice from your former employer, I recommend speaking to an employment lawyer to get an accurate assessment of your entitlements and develop a plan to negotiate or, if necessary, litigate.
THE SECOND ANSWER
Ryan Edmonds and Patrycja Geca, Ryan Edmonds Workplace Counsel, Toronto
There are time limits in each province’s employment standards legislation for how long a temporary layoff can run before you need to be recalled back to work. If you are not recalled within the time limit, most legislation will deem the employment relationship to be terminated.
The bigger issue though may not be the lack of recall, but rather the temporary layoff itself. Even though employment standards legislation has rules around temporary layoffs, it does not override any contractual or common law rights you may have to not be laid off in the first place. If your employment contract does not give your employer the explicit right to place you on a temporary layoff, then you may have the right to treat the layoff as a constructive dismissal (for example, a termination giving the right to termination and severance pay).
Even if your employer has the right to place you on layoff, employment relationships are built on trust. That means if your employer is telling you, on the one hand, that there’s no work available and that it has no choice but to lay you off, but on the other hand has posted for your exact role, then unless there is a good explanation for the discrepancy, there may be a fundamental breach of trust that could give rise to a claim for constructive dismissal.
If you are interested in returning, ask your employer’s HR department for a compelling explanation. If you have no interest in returning, consult an employment lawyer.
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Andrea Yu