Labour & Employment Law Blog

Layoffs, layoffs, layoffs …

Layoffs, layoffs, layoffs

I’ll say this again: Layoffs.

Whether you’re an employer or employee you have likely had your share of exposure to the aforementioned concept in the last few weeks on social media. There is a great deal of chatter about “being laid off.” Indeed, “laid off due to COVID-19” or “COVID-19 layoff” are now commonly searched phrases given the troubling downturn in the economy because of the pandemic. In fact, what a “layoff” actually means has been a source of confusion for my clients for years, employers and employees alike. Indeed, this confusion is compounded by definitional idiosyncrasies in Service Canada’s Record of Employment (“ROE”) codes, which do not entirely correspond to certain employment law concepts at the provincial level, including the notion of a “layoff.” In consequence, I have decided to join the chorus of numerous employment lawyers in an effort to clarify what a “layoff” actually means.

First and foremost, one has to understand that absent an enforceable contractual term, an employer cannot simply tell its employee that there is no work and that if there is work on a certain date in the future the employee would be able to continue his or her employment at that time. In common employment law parlance, such a state of affairs would amount to a “constructive dismissal” and entitle the employee to statutory and common law compensation because the employment agreement would be at an end.

This is where the concept of a “layoff” comes in. A layoff is a cessation of work not of employment. This means that if lawfully implemented, a layoff allows the employer to pause work without pay and without it being deemed a breach of the employment relationship (i.e. termination). It will allow the employer to essentially put work “on hold,” and not have to pay the employee their salary during this period of a temporary break.

Most of the employer clients who come to see me confidently tell me that the employee who is now suing them will not succeed as they had “laid off” him or her in accordance with the law. They proceed to voice their displeasure with having to deal with a civil action merely for following what is set out in the layoff provisions of the Employment Standards Act (“ESA”). This is the moment when I usually ask them if they have a written employment agreement with the said employee that sets out that they may layoff him or her in accordance with the ESA. Overwhelmingly (and expectedly) the answer is “no.”

Therein lies the second misunderstanding: a layoff is not lawful even if the employer’s “layoff” is otherwise conducted in compliance with the ESA. This is because the right to layoff is found in contract, not statute. The ESA is, of course, important for those employers governed by it. However, it does not grant the right to layoff. Instead, it sets out the legal framework for how to do so if the employer has such a right in the first place. Such a right has to somehow constitute a contractual term. Absent such a right – express or implied – the moment the employer “lays off” an employee, they are facing the possibility of a constructive dismissal action. This is a tough pill to swallow but this is the current state of affairs in Ontario. It is rarely if ever an issue in the unionized setting where a layoff is usually spelled out in the collective agreement.

A final word on ROEs. I have stated at the outset that some definitions are not entirely consistent with some provincial employment law concepts and “layoff” is one of them. For instance, whereas a ROE’s “Code M” stands for “dismissal,” “Code A” stands for “layoff.” However, Code “A” is also interpreted as letting an employee go in the event the position has become redundant or eliminated or if there is a temporary or permanent shutdown of operations. In other words, “Code A” may be regarded as an actual termination for the purposes of employment insurance (“EI”). Moreover, to the extent that “Code A” is interpreted as an actual layoff, it would not shield the employer from a constructive dismissal lawsuit; instead, it would merely entitle the employee to EI benefits. Again, the logic is the same: if a layoff is not a contractual term then a civil action could be looming on the horizon.

Where does this leave us? If you are an employer seeking to layoff an employee be sure that your written agreement says you can actually or that you are relying on some sort of implied right to that end. If you are an employee who has been laid off, ask yourself if the layoff was legal.

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.

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.