Stephanie Henry comments in Canadian HR Reporter on best practices for employers in recalling laid-off workers.
“I have seen a few claims for constructive dismissal in response to a temporary layoff. And we do have some common law case law indicating that to the extent that an employer does a temporary layoff, just because you have the right to do it under the legislation doesn't necessarily take away for an employee's common law right to claim constructive dismissal.”
Employers should also make sure they’re not going outside the time period wherein a temporary layoff crystallizes into a firm termination, she says.
When it comes to recalling employees back to work, employers should ensure they do so in accordance with their business needs, and not on the basis of any discriminatory reason, says Henry.
“You want to be mindful of your obligations under various human rights legislation, so you don't want to... choose to recall or not recall on the basis of prohibited grounds of discrimination [such as] disability, gender, religion, things like that.”
Another consideration? Employees who have extensive years of service.
“You might want to prioritize recalling them as opposed to shorter-service employees, because it's more expensive to terminate a long-service employee without cause than it is to terminate a shorter-service employee without cause [though] all this is assuming that we don't have a termination clause in a contract,” she says.
In accordance with the legislative provisions and timelines, employers should also bring people back into the same positions they had, or a comparable position, at the same rate of pay, says Henry, “because trying to get employees into lesser positions or change of positions that are materially different from when they went on the temporary layoff could trigger constructive dismissal claims.”
Employers should approach a re-employment offer with care, specifically addressing the terms and conditions of the offer along with any factors which may have been in place prior to the layoff or termination.
If an employee refuses to come back because they are unhappy with what they’re offered, the employer may consider ending the employment relationship.
“There might be a situation where it's akin to abandonment or akin to resignation, it really depends on the facts,” says Henry.