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The Question

I was temporarily laid off by my employer. They said it would last up to 13 weeks. During this layoff period, I am still helping my employer one day a week and receive payment for the hours spent working. Back in June, upon request from my employer, I signed a Declaration for Exemption From Completing Claimant Reports and agreed to participate in the work-sharing program. Now my employer is asking me to work three days a week without committing to a date when the work will turn full-time. What is my legal obligation to this request? The temporary layoff period is ending soon. Can I insist on working full-time? If my employer does not agree to full-time work, can I view this as evidence of wrongful dismissal and start legal action against my employer?

The First Answer

Jonquille Pak, partner, Pak Smith Employment Lawyers, Toronto

For non-union employees, a unilateral reduction in work hours and pay may constitute a constructive dismissal. A constructive dismissal occurs when your employer makes fundamental changes to terms of employment without your consent. You are not obliged to work under the new terms. You can resign and seek a severance package as though you were dismissed. Not all reductions in pay or hours will amount to a constructive dismissal. The change must be fundamental in nature.

In the context of COVID-19, however, various provinces implemented measures to protect businesses forced to reduce hours and pay due to the pandemic. In Ontario specifically, the province passed regulations allowing employers to temporarily reduce work hours and pay without triggering a termination or constructive dismissal during the COVID-19 period (March 1, 2020 to January 2, 2021). At least for employment standards purposes, such a reduction is not a constructive dismissal during this period. The regulations are not binding upon whether a court would assess you as constructively dismissed under common law, but are likely to be influential.

Beyond the COVID-19 period, if you are asked to work three days a week, down from a regular five-day workweek, this is a significant change. Simply because you agreed to a temporary work-share program does not mean you agreed to a permanent reduction in hours or pay. State your concerns. Ask for full-time hours. If that isn’t an option right now, inquire about when full-time work will be restored. Do not assume it is permanent. If your employer does not return you to full-time hours and pay, without any clear end in sight, you may resign and claim constructive dismissal damages. Consult with an employment lawyer first before resigning.

The Second Answer

Jim Wu, employment lawyer, Forte Law Corporation, Surrey B.C.

If your employer is asking you to return to work and you will be making at least 50 per cent of your normal wages, you are no longer on a temporary layoff and your options now are to accept or refuse to return to work.

A refusal to return to work can look like a resignation and you risk forfeiting your severance pay and your entitlement to federal benefits, including CERB and EI. However, you may also refuse work and assert constructive dismissal, depending on the terms of your work-sharing agreement (WSA), which, if you are successful, gets you severance.

Under a WSA, you are eligible to receive EI that pays 55 per cent of your normal weekly earnings up to a maximum of $573 a week, for a period ranging from six to 76 weeks. If you add your reduced pay and EI together, and the sum is less than 80 per cent of your normal pay, you may have a claim for constructive dismissal.

However, employees who have been constructively dismissed are obligated to look for work and not turn down reasonable employment opportunities. Failing to accept an offer to return to work, even at reduced hours, could significantly affect your severance claim.

Again, employees should be cautious about refusing work as this may disqualify them from receiving further government benefits. Employees should get legal advice before asserting constructive dismissal or refusing to return to work as this can jeopardize a legal claim.

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