Ontario: Employee termination

[vickyp]

#102765

Forum: Community

A publishing company has downsized and re-structured as a result of a decrease in business. There will be no work for employees that were layed off on March 17th (21 weeks ago). The ESA states the following:
New regulation
The government has made a new regulation under the Employment Standards Act, 2000 (ESA). Under this new regulation, a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work because of COVID-19 is deemed to be on a job-protected Infectious Disease Emergency Leave.
The regulation affects how the termination, severance and constructive dismissal rules under the ESA apply during the COVID-19 period. These temporary rules apply retroactively to March 1, 2020 and expire on September 4, 2020.  They do not apply to employees represented by a trade union.
More information on these changes will be available in this guide soon. You can find the regulation with the changes here: O. Reg. 228/20.
Termination and severance pay
Under the ESA, if an employee is laid off for a period longer than a temporary layoff, the employer is considered to have terminated the employee’s employment and they would generally be entitled to termination pay (and in certain cases severance pay).
Under the new regulation, an employee is not considered to be laid off if their employer temporarily reduces or eliminates their hours of work for COVID-related reasons. This means the layoff clock stops ticking towards becoming a termination of employment.
Constructive dismissal
Under the ESA, a constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment (like significantly reducing their hours of work or wages) without the employee’s consent. The employee would have to resign in response to the change within a reasonable period of time in order for the employer’s actions to be considered a termination of employment for purposes of the ESA.
Under the new regulation, an employee is not considered to be constructively dismissed under the ESA if their employer temporarily reduces or eliminates their hours of work or wages for COVID-related reasons.
Does the employer need to wait until September 4th’
Thank you
 
 
 

[vickyp]

#103206

I’m sorry, I don’t understand the Q. I feel bad because u obviously made a lot of effort to write it. But I’m not the brightest bulb on the Xmas tree. Anyway, my Q is “wait until Sept. 4” to do what’ Again, sorry. But if u can clarify, I’ll try and get right back to u. Glenn.

[vickyp]

#103207

Hi Glenn, sorry for being unclear. The NEW regulation affects how the termination, severance and constructive dismissal rules under the ESA apply during the COVID-19 period. These temporary rules apply retroactively to March 1, 2020 and expire on September 4, 2020.
My question is can he terminate the 2 employees now (been on lay off for 21 weeks), as there is no work and nothing changing in the foreseeable future.

[vickyp]

#103208

I see. My understanding is that the Reg doesn’t apply to TERMINATIONS during the COVID period. Exception: Employees who were previously terminated and working during the notice period can reclassify the notice as an emergency disease leave of absence. But that doesn’t apply in this case. I guess it could be argued that since the employees are technically on leave of absence, they can’t be terminated. But I don’t think that’s the intent of the Reg. Of course, the usual ESA termination and severance rules will apply if the firm does terminate the 2 employees. Hope that answers your Q. Keep in mind that this is just a personal opinion and this is a new Reg. Feel free to contact me at glennd@bongarde.com if you want to continue the conversation.

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