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Deemed IDEL (Infectious Disease Emergency Leave) was retroactively effective on March 19, 2020 to place employees on an unpaid job-protected leave of absence without triggering a termination as a result of COVID-19, and extended until July 30, 2022 by the government.
Following the expiry date of IDEL, the non-unionized employees’ rights under ESA (Employment Standards Act) whose has a significant reduction in hours of work or pay can no longer be considered on the job-protected emergency leave due to COVID-19. It triggers the employee’s entitlement to full notice of termination or termination pay in lieu of notice period and other entitlements, if an employee hasn’t been recalled to work on or before July 30, 2022 which could lead to a permanent termination. Likewise, a temporary layoff, which results in a significant reduction in wages and hours of work starting on or after July 31, 2022, may constitute to a constructive dismissal claim.
The above-mentioned IDEL leave is not applicable to non-unionized employees’ rights under common law. It is not legal to place an employee on a temporary layoff under common law, unless there is any clause of temporary layoff provision expressly stipulated in the employment contract, or established past practices, or through employee’s consent verbally or in writing. In case an employee doesn’t accept a temporary layoff, while no term permitted in the employment agreement, he or she is entitled to notice of termination or termination pay in lieu of notice period and other entitlements due to a permanent termination without cause.
Let’s examine some of case decisions ruled pertaining to employees’ rights under common law during the pandemic.
Coutinho v. Ocular Health Centre Ltd demonstrates that IDEL regulations do not bar any employee from suing for constructive dismissal damages against their employers under common law, when placed on temporary layoff without any relevant clause expressly justified in the employment contract.
Jessica Coutinho was employed by Ocular Health Centre as the Clinic manager for almost 6 years, before being placed on a temporary layoff on May 29, 2022. As a result, Coutinho sued alleging her employer for constructive dismissal, whereas Ocular defended that a temporary layoff did not constitute to constructive dismissal because the employee was on a job-protected leave of absence (the “IDEL” regulations under ESA).
Pursuant to s. 8(1) of the ESA stipulates that “no civil remedy of an employee against his or her employer is affected by the Act”, except where an employee has previously filed the complaint under ESA alleging an entitlement to termination or severance for the same matter. Nevertheless, there was no evidence that Coutinho filed a complaint against Ocular under ESA previously for this alleged matter. Coutinho fully mitigated her common law damages by commencing employment with Tri-City Eye on July 22, 2020. Hence, she received her statutory entitlement to termination pay in the sum of $6,103.85 arising from the constructive dismissal after her duty to mitigate damages. The Ontario Court of Appeal remarked that Coutinho entitlement to her six-weeks’ salary as termination pay for her six years of service is not subject to a deduction of mitigation income, since statutory entitlements are not damages.
Fogelman v. IFG is another case to establish that IDEL regulations do not supersede employee’s right to allege for a constructive dismissal claim at common law. IFG hired Fogelman for almost 10 years and 8 months in a middle management position, until he was placed on a temporary lay-off on March 16, 2020 due to a downturn in business resulted from the impact of COVID-19. Fogelman was alleging that he had been constructively dismissed at common law, because his employment agreement did not permit the employer to place him on a temporary layoff. The definition of termination clause, in case of termination of employment, was in ambiguity in his employment agreement, and therefore it was in favor of employee’s interpretation that the common law dictates the employee’s entitlement to termination or severance.
The court finally awarded Mr. Fogelman his constructive dismissal damages for (i) pay in lieu of 15 months of reasonable notice, (ii) three unpaid vacation days and (iii) punitive damages of $25,000. The sum of $3,600 Mr. Fogelman earned during the notice period is deducted from the total sum referenced above to reflect Mr. Fogelman’s mitigation efforts. The court also referenced that CERB payment should not be offset any employee’s award for damages.
Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for an independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.
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Deemed IDEL (Infectious Disease Emergency Leave) was retroactively effective on March 19, 2020 to place employees on an unpaid job-protected leave of absence without triggering a termination as a result of COVID-19, and extended until July 30, 2022 by the government.
Following the expiry date of IDEL, the non-unionized employees’ rights under ESA (Employment Standards Act) whose has a significant reduction in hours of work or pay can no longer be considered on the job-protected emergency leave due to COVID-19. It triggers the employee’s entitlement to full notice of termination or termination pay in lieu of notice period and other entitlements, if an employee hasn’t been recalled to work on or before July 30, 2022 which could lead to a permanent termination. Likewise, a temporary layoff, which results in a significant reduction in wages and hours of work starting on or after July 31, 2022, may constitute to a constructive dismissal claim.
The above-mentioned IDEL leave is not applicable to non-unionized employees’ rights under common law. It is not legal to place an employee on a temporary layoff under common law, unless there is any clause of temporary layoff provision expressly stipulated in the employment contract, or established past practices, or through employee’s consent verbally or in writing. In case an employee doesn’t accept a temporary layoff, while no term permitted in the employment agreement, he or she is entitled to notice of termination or termination pay in lieu of notice period and other entitlements due to a permanent termination without cause.
Let’s examine some of case decisions ruled pertaining to employees’ rights under common law during the pandemic.
Coutinho v. Ocular Health Centre Ltd demonstrates that IDEL regulations do not bar any employee from suing for constructive dismissal damages against their employers under common law, when placed on temporary layoff without any relevant clause expressly justified in the employment contract.
Jessica Coutinho was employed by Ocular Health Centre as the Clinic manager for almost 6 years, before being placed on a temporary layoff on May 29, 2022. As a result, Coutinho sued alleging her employer for constructive dismissal, whereas Ocular defended that a temporary layoff did not constitute to constructive dismissal because the employee was on a job-protected leave of absence (the “IDEL” regulations under ESA).
Pursuant to s. 8(1) of the ESA stipulates that “no civil remedy of an employee against his or her employer is affected by the Act”, except where an employee has previously filed the complaint under ESA alleging an entitlement to termination or severance for the same matter. Nevertheless, there was no evidence that Coutinho filed a complaint against Ocular under ESA previously for this alleged matter. Coutinho fully mitigated her common law damages by commencing employment with Tri-City Eye on July 22, 2020. Hence, she received her statutory entitlement to termination pay in the sum of $6,103.85 arising from the constructive dismissal after her duty to mitigate damages. The Ontario Court of Appeal remarked that Coutinho entitlement to her six-weeks’ salary as termination pay for her six years of service is not subject to a deduction of mitigation income, since statutory entitlements are not damages.
Fogelman v. IFG is another case to establish that IDEL regulations do not supersede employee’s right to allege for a constructive dismissal claim at common law. IFG hired Fogelman for almost 10 years and 8 months in a middle management position, until he was placed on a temporary lay-off on March 16, 2020 due to a downturn in business resulted from the impact of COVID-19. Fogelman was alleging that he had been constructively dismissed at common law, because his employment agreement did not permit the employer to place him on a temporary layoff. The definition of termination clause, in case of termination of employment, was in ambiguity in his employment agreement, and therefore it was in favor of employee’s interpretation that the common law dictates the employee’s entitlement to termination or severance.
The court finally awarded Mr. Fogelman his constructive dismissal damages for (i) pay in lieu of 15 months of reasonable notice, (ii) three unpaid vacation days and (iii) punitive damages of $25,000. The sum of $3,600 Mr. Fogelman earned during the notice period is deducted from the total sum referenced above to reflect Mr. Fogelman’s mitigation efforts. The court also referenced that CERB payment should not be offset any employee’s award for damages.
Disclaimer: This information is not intended to be construed as a legal advice, but strictly for your information only. Please contact Trustworthy Legal Services for an independent legal advice in your particular situation. The first consultation is required prior to the retainer of your case.
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