Be Cautious of Temporary Layoffs or Dismissal of Employees During COVID-19

During this uncertain time, we are seeing employers in Ontario laying off employees due to a loss in business. As such, employers need to keep in mind employee’s rights under the Employment Standards Act (“ESA”) and the Human Rights Code (the “Code”) as both contain phrases that discipline employers who wrongfully terminate employees and/or discriminate against them based on a prohibited ground. It is important to note that if an employee is dismissed based on a prohibited ground, it may be automatically assumed that the employer discriminated against that employee, and the employer must show that there was no discrimination.

According to the ESA, employees may take a leave of absence without pay for a variety of reasons, including pregnancy leave and sick leave. As mentioned in our previous article, Ontario Extends Emergency Leave, the government of Ontario recently created legislation which entitles those impacted by COVID-19 to take unpaid, job-protected leave, known as Infectious Disease Emergency Leave.

During a leave of absence, especially on a prohibited ground such as pregnancy, employers are not permitted to terminate or lay-off employees. Moreover, when the employee returns to work, the employee must be reinstated to the position that he or she held with the employer prior to the leave of absence or must be placed in a comparable position if the previous job no longer exists. If the employer does not comply with the ESA, their actions may be considered a unilateral change to the employment contract or may constitute discrimination under a prohibited ground of the Code.   

For example, in the case of Bray v. Canadian College of Massage and Hydrotherapy (2015), an employee worked as a massage therapist instructor with her employer for nine years. During the duration of her employment, she held the position of lead trainer and consistently worked 25 hours a week. During her ninth year, the employee became pregnant and took maternity leave. When she returned to work, she found that her hours were reduced from 25 hours a week to 19 hours a week and she was demoted. A couple of months later, her employer informed her that she was removed from all classes, clinics, and outreach programs for the next term because her services were “no longer required.”

In this case, the court found that the employee was constructively dismissed by the employer for unilaterally changing her contract and had discriminated against her on the grounds of family status and sex. The court awarded the employee $17,700 in damages for payment in lieu of notice, $20,000 for discrimination, and $5,000 to punish the employer for its actions.

In another case, Partridge v. Botony Dental Corporation (2015) the employee was a dental hygienist with her employer for over seven years. During her employment, her role changed from dental hygienist to office manager. The employee took maternity leave two times. Before her return from the second maternity leave, the employer advised that her position as the office manager was no longer available and that she had to resume her former job as a dental hygienist. When the employee attempted to assert her right to be reinstated to her former position, the employer responded with reprisal and made her work hours that she did not work previous to her maternity leave, knowing that it conflicted with her daycare schedule. Again, the employee asked for more favourable hours to accommodate her daycare schedule. The employer responded by terminating the employee for not returning to work on the agreed-upon date, falsifying work hours, demanding to work hours not available, and taking private client information home with her.

In this case, the court found that the employer was unable to meet its burden of showing a justifiable reason for the termination and awarded damages in the amount of $42,517.44 for wrongful dismissal and $20,000 for breaching the Code.

In summary, employers should be cautious of the consequences of their actions regarding employees who may be protected under a prohibited ground or when taking a leave of absence, especially when dismissing or laying off workers during this time.

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