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| ====1. Covid-19 Related Leave ==== | | ====1. Covid-19 Related Leave ==== |
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| | ==== a) Mitigation ==== |
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| | Courts may consider Covid-19 as an economic factor arising post termination which impacts the availability of comparable employment and may consider that in the analysis of whether an employee took reasonable steps to mitigate damages. See Mohammed v. Dexterra Integrated Facilities Management, 2020 BCSC 2008. |
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| | ==== b) Timing for Assessing Reasonable Notice ==== |
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| ==== Layoffs ====
| | In Yee v. Hudson’s Bay Company, 2021 ONSC 387, the Ontario Supreme Court confirmed that the length of reasonable notice is assessed based on circumstances at the time of termination. The court did not increase the reasonable notice period for an employee who was terminated prior to the onset of the covid-19 pandemic, but argued the pandemic made it difficult for him to find new work. |
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| Under the Employment Standards Act, employers are only permitted to place employees on temporary layoff if there is a right to do so in the employment contract, layoffs are customary in the industry, or the employee consents. In normal circumstances, temporary layoffs can be for a maximum of 13 weeks, at which point if the employee is not recalled the layoff becomes a termination of employment, and triggers a severance obligation.
| | In Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998, https://canlii.ca/t/jd505, the employee was terminated after the start of the pandemic. The Ontario Supreme Court acknowledged the pandemic impacted the plaintiff’s job search, but it was unclear how or whether this impacted the notice period. The Court cautioned that reasonable notice remained to be assessed as of the time of termination. Employees will likely need to provide specific evidence that the pandemic impacted the availability of alternative employment, in order to successfully argue for an increased notice period as a result of the pandemic. |
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| An exclusion has been granted under the ESA for Covid-19 related temporary layoffs, extending the maximum layoff period from 13 to 24 weeks. The requirements remain that to put an employee on a temporary layoff there must be a right to do so in the employment contract, layoffs must be customary in the industry, or the employee must consent. Otherwise, the layoff can be considered a termination.
| | ==== c) New Position Offered on Return from Layoff and Constructive Dismissal ==== |
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| ==== Covid-19 Related Leave ====
| | In Mack v. Vancouver Free Press Publishing Corp., 2021 BCCRT 370, the CRT found that an employee who was laid off during the pandemic and was offered to return to a significantly different position, did not resign by his rejection of the call back, but was in fact constructively dismissed, and entitled to a severance. |
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| The Employment Standards Amendment Act (No. 2), 2020, was brought in to force in part as a response to the 2020 Covid-19 pandemic.
| | ==== d) Canadian Emergency Response Benefit (“CERB”) and Damages ==== |
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| The amendment provides for a protected Covid-19 related leave, for employees who are diagnosed with Covid-19, who are required to quarantine or self-isolate under health agency guidelines, who are directed by the employer not to work, who are required to care for a child as a result of school or daycare closure, or who are trapped outside of BC as a result of travel restrictions (among other reasons listed in the amendment). If an employer dismisses an employer who is on an unpaid Covid-19 leave, there can be a claim of a breach of the Employment Standards Act (see ESA s. 52.12).
| | There is evolving jurisprudence on whether CERB benefits received by an employee should be deducted from an employee’s damages for wrongful dismissal. A few recent cases support the proposition that CERB benefits should not be deducted from an employee’s severance award (see Slater v. Halifax Herald Limited, 2021 NSSC 210 & Fogelman v. IFG, 2021 ONSC 4042). However, as this question is relatively new and is evolving students should review the most current state of the law on this issue. |
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| ==== Unforeseeable Event Considerations ====
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| Section 65 (d) states that termination pay does not apply if the employee is “employed under an employment contract that is impossible to perform due to an unforeseeable event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act,”
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| Employers may advance the argument that Covid-19 is an unforeseeable event which renders the employment contract impossible to perform and use that as an argument to avoid paying employees termination pay in lieu of notice.
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| The Employment Standards Branch interpretation guidelines have suggested that this clause may apply in some circumstances, as follows:
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| ==== COVID-19 ====
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| If a business closure or staffing reduction is directly related to COVID-19 and there is no way for employees to perform work in a different way (for example, working from home) the exception may apply to exclude employees from receiving compensation for length of service and/or group termination pay.
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| This exception is not automatic in all situations during the pandemic. If an employer terminates an employee for reasons that are not directly related to COVID-19 or if the employee's work could still be done (perhaps in a different way, such as working from home) the exception would not apply. Decisions on whether this exception applies are made by the Director on a case-by-case basis.
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| However, the threshold for impossible to perform is very high (see BC EST # D105/08), and Employment Standards interpretation guidelines, while potentially indicative of results, are not binding precedent in an Employment Standards claim.
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| As a result, students should review new Employment Standards decisions to see how this provision has actually been interpreted in relation to Covid-19.
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| == Breach of contractual terms of employment == | | == Breach of contractual terms of employment == |
