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Labour & Employment Law Blog

Lay-off Treated as Constructive Dismissal by Superior Court, Awarded Termination Pay

Zeilikman Law

Zeilikman Law

Case Summary

The Ontario Superior Court of Justice found that the employer, Gracious Living Corp., wrongfully dismissed the plaintiff-employee after having temporarily laid him off for three (3) months, despite having complied with Employment Standards Act (“ESA”) requirements regarding temporary lay-offs. The decision, following a similar one made in 2011 by the Court of Appeal in Elsegood v Cambridge Spring Service, serves as an important reminder for employers to ensure that temporary lay-offs are part of the employment agreement prior to taking any such action.

THE FACTS

The plaintiff-employee was laid-off for three (3) months after sixteen (16) years of service with the employer. At no point was the plaintiff told that he was being terminated, nor was he lead to believe so. The issue turned on whether the employer had the right to temporarily lay-off the plaintiff as per the employment agreement. The Court found that the employer had neither the express nor implied right to do so and therefore the temporary lay-off constituted constructive dismissal. As such, the plaintiff was entitled to termination pay.

OUR THOUGHTS

Constructive dismissal occurs when an employer unilaterally alters a fundamental term of the employment contract. This can occur in the context of a written employment agreement, or an implied agreement, and often leaves employers on the hook for termination pay.

The ESA allows for temporary lay-offs, subject to certain conditions set out therein. Nevertheless, a temporary lay-off must be part of an employment agreement, otherwise the employer risks exposure to liability. Therefore, it is always good for employers to include a clause in the employment agreement to the effect that they retain the right to temporarily lay-off the employee, subject to compliance with the ESA. A well-placed “lay-off clause” can go a long way in saving everybody the headache of having to defend a lawsuit later on.

See: Bevilacqua v Gracious Living Corp. 2016 ONSC

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

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Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.