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The Question

I was laid off last year and I am still waiting to be welcomed back or terminated. But a few weeks ago, my company listed my role on their careers page and were seeking new applicants. Are they legally allowed to hire someone to fill my position while I’m still laid off?

The First Answer

Sarah V. Coderre, partner, Bow River Law LLP, Calgary

A temporary layoff is supposed to be temporary, and best practice would be for your company to tell you that you are not being recalled before posting an ad for your job. Posting an ad for your job while you are on temporary layoff could be viewed as a constructive dismissal at common law depending on the circumstances, which means that your employer has essentially terminated your employment through their actions rather than providing you with notice of termination.

However, rather than making a claim for constructive dismissal, I would recommend that you contact your HR department, tell them you saw the ad, and ask if you are being recalled or if you will be terminated. Your company owes you a duty of good faith, which means that they are legally required to be honest and transparent with you about what is going on.

If your employer is actually terminating you instead of recalling you, they are required to give you reasonable notice of termination (working notice) or provide you with a termination package that is equivalent to what you would have earned if you had been given reasonable notice of termination and worked during that notice period. Your layoff period does not count toward your reasonable notice period at law. Given that your employer does not appear to be following best practices regarding your temporary layoff, I recommend that you be cautious and seek independent legal advice before agreeing to accept any termination package that they may offer you.

The Second Answer

Rahul Soni, barrister and solicitor, Soni Law Firm, Toronto

Your employer’s decision to hire someone else for your job while you are waiting to return could very likely mean you have been constructively dismissed and are entitled to a severance package.

Your employer is only allowed to lay you off if you agreed to give them that right as part of your employment contract. If that is the case, you cannot assert a constructive dismissal until after July 3, 2021: the last day of the “COVID-19 period” as set out by Employment Standards Act’s Infectious Emergency Leave regulation in Ontario.

However, most employees do not have contracts that allow them to be laid off by their employer. This need was never contemplated by many workplaces and their employment contracts never bothered to address this issue. If this is your situation, you can immediately assert a constructive dismissal argument, which means that you have been terminated from your job and may be entitled to a severance package. Here, the triggering event for your constructive dismissal is your employer’s unwillingness to let you return to work and earn a living.

Also, you may have a separate and additional human rights claim if the reason your employer did not recall you back or is looking to replace you is because of any of the protected grounds, including: age, gender, disability, family status, martial status, ethnic origin, colour, race, sex or sexual orientation.

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