Skip to main content
The Globe and Mail
Support Quality Journalism
The Globe and Mail
First Access to Latest
Investment News
Collection of curated
e-books and guides
Inform your decisions via
Globe Investor Tools
Just$1.99
per week
for first 24 weeks

Enjoy unlimited digital access
Enjoy Unlimited Digital Access
Get full access to globeandmail.com
Just $1.99 per week for the first 24 weeks
Just $1.99 per week for the first 24 weeks
var select={root:".js-sub-pencil",control:".js-sub-pencil-control",open:"o-sub-pencil--open",closed:"o-sub-pencil--closed"},dom={},allowExpand=!0;function pencilInit(o){var e=arguments.length>1&&void 0!==arguments[1]&&arguments[1];select.root=o,dom.root=document.querySelector(select.root),dom.root&&(dom.control=document.querySelector(select.control),dom.control.addEventListener("click",onToggleClicked),setPanelState(e),window.addEventListener("scroll",onWindowScroll),dom.root.removeAttribute("hidden"))}function isPanelOpen(){return dom.root.classList.contains(select.open)}function setPanelState(o){dom.root.classList[o?"add":"remove"](select.open),dom.root.classList[o?"remove":"add"](select.closed),dom.control.setAttribute("aria-expanded",o)}function onToggleClicked(){var l=!isPanelOpen();setPanelState(l)}function onWindowScroll(){window.requestAnimationFrame(function() {var l=isPanelOpen(),n=0===(document.body.scrollTop||document.documentElement.scrollTop);n||l||!allowExpand?n&&l&&(allowExpand=!0,setPanelState(!1)):(allowExpand=!1,setPanelState(!0))});}pencilInit(".js-sub-pencil",!1); // via darwin-bg var slideIndex = 0; carousel(); function carousel() { var i; var x = document.getElementsByClassName("subs_valueprop"); for (i = 0; i < x.length; i++) { x[i].style.display = "none"; } slideIndex++; if (slideIndex> x.length) { slideIndex = 1; } x[slideIndex - 1].style.display = "block"; setTimeout(carousel, 2500); }
The question

My manager recently asked everyone on our team if we’re interested in taking unpaid leave. Is this legal? If I take a voluntary leave and then I get terminated, am I still entitled to the same amount of severance?

The first answer

Nadia Halum Arauz, associate, Whitten & Lublin Employment Lawyers, Toronto

The employer is likely seeking volunteers who would prefer to stay home and receive the Canada Emergency Response Benefit (CERB) before implementing more severe measures such as reductions to compensation, layoffs or terminations. I see no issue with the employer’s approach in seeking volunteers first.

Story continues below advertisement

If the employee does choose to take a voluntary leave and is ultimately terminated, the period of time that the employee was on leave should be counted toward the employee’s service when determining how much severance they are entitled to. In other words, the leave should not reduce the amount of severance to which the employee is entitled.

However, the employee should be aware that if there is a period of time during which they are receiving employment insurance or CERB benefits, and this period of time overlaps with a period during which they receive severance pay from the employer, they will likely have to repay the EI or CERB benefits received during the overlap.

The second answer

Eric Lam, lawyer, Taylor Janis Workplace Law, Calgary

An employer may lay off employees temporarily, so long as it follows strict requirements under the relevant provincial employment standards legislation for notice of layoff and recall. The standards vary by province as to what constitutes an appropriate length of layoff before the layoff becomes a termination of employment.

However, you are not required to voluntarily accept an unpaid leave and an employer should not change the fundamental terms of their employee’s contractual relationship without consent. If an employer makes changes regardless or fails to follow provincial employment standards legislation, this would constitute a constructive dismissal.

A constructive dismissal occurs when, without providing a formal termination, an employer unilaterally changes the fundamental terms of the employment relationship such that a reasonable employee in similar circumstances would understand their employment contract to be ended. In such instances, the employee is entitled to resign and seek damages against their employer as if they had been formally terminated.

The damages associated with constructive dismissal are the same as those for employees who have been terminated. A court would review the employee's age, length of service, role and the availability of other work to calculate what amount of pay in lieu of reasonable notice would be appropriate in the circumstances.

Story continues below advertisement

If you choose to take a voluntary leave and are terminated upon recall, you would be entitled to the same termination pay under provincial employment standards legislation and reasonable pay in lieu of notice as severance as if a leave had not been taken.

Have a question for our experts? Send an email to NineToFive@globeandmail.com

Stay ahead in your career. We have a weekly Careers newsletter to give you guidance and tips on career management, leadership, business education and more. Sign up today.

Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies