As a result of COVID-19, many employees were placed in the uncertain position of being temporarily laid off under the ESA, now called Infectious Disease Emergency Leave (“IDEL”). It was unclear whether recent modifications to the ESA disentitles employees on IDEL from making constructive dismissal claims under the common law.

A recent decision by the Ontario Superior Court has clarified a burning question in Ontario employment law: whether a temporary layoff under the Employment Standards Act (“ESA”) constitutes a constructive dismissal under the common law. Justice Broad in Coutinho v Ocular Health Centre has determined that an employee who was placed on a temporary layoff due to COVID-19 was entitled to receive compensation for constructive dismissal.

In finding that Infectious Disease Emergency Leave layoffs may qualify as a constructive dismissal at common law, the court determined that employees have the right to pursue constructive dismissal damages at common law. The court also referred to a May 2020 document from the Ministry of Labour which stated that the changes to constructive dismissal would only impact ESA rights, and not common law rights.

This decision also rejected the argument that an employee must make inquiries of when they will be called back to work before they can claim constructive dismissal. Instead, Justice Broad confirmed that a unilaterally imposed layoff brings the contract of employment to an end, and that the employee has an immediate right to sue for constructive dismissal.

Infectious Disease Emergency Leave bottom line:

1. This court decision is promising news for employees that were placed on Infectious Disease Emergency Leave.
2. If you have not been called back to work since being laid off, or if your hours of work or pay were changed, you may be entitled to severance from your employer.
3. Even if the changes to your job or the layoff occurred prior to this court decision, you may still be able to make a claim for constructive dismissal.

To better understand your workplace rights or to explore the viability of a claim during these unprecedented times, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.

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