An Ontario court has awarded damages to an employee who claimed termination and severance pay following a layoff of more than 35 weeks - despite the fact that he chose to return to work.
The Ontario Employment Standards Act (ESA) states clearly that if an employee is laid off for 35 weeks out of 52, they have the right to choose between termination and severance pay and a return to work if that is offered. When the labourer in question hit the 35 week point he demanded, through a lawyer, the pay he was entitled to.
After receiving his letter the company offered to return him to work, which he accepted. However, he still demanded his termination and severance pay. The company argued that by accepting the return to work, the previous termination no longer applied.
The Small Claims Court did not agree, stating that because the workers’ employment contract had already terminated, he could not return to work under that contract. According to the court, when he returned to work in February 2011, the company had rehired him under a new employment contract.
“The employer did not offer the recall opportunity until well after 35 weeks had passed and in this case the court found the offer was made too late,” employment lawyer Bonnea Channe, from Filion Wakely Thorup Angeletti, said. “If the company had made the offer before or just as the 35 weeks was up it would have had a stronger argument that this was a right of recall that the individual accepted.”
Key HR takeaway:
In industries where layoffs are common, it’s vital that employers keep clear records which they check frequently. Knowing which workers are approaching the 35 week line is key to being prepared with either the pay required under the ESA or with an offer to return to work.
“Employers need to be vigilant and mindful of when the recall offer is made. Timing is vital – in this case the offer was made too late. When employees are on lay off and there is an intention to recall to work they must ensure the offer of recall is made within the appropriate timeframe,” Channe said.
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