Lay-Off as CD

 

Lay-Off as Constructive Dismissal

Presuming that there is not an express or implied term allowing the right of lay-off, such action has been considered a substantial change allowing the employee to assert a constructive dismissal claim. This is so, even where the lay-off is temporary, or apparently allowed by the minimum standards legislation. 1 2

The implied right of lay-off is an issue which will not be readily implied into the relationship. The right to do so may not be implied by the fact a co-worker has been laid off. “The right to impose a lay-off as an implied term must be notorious, even obvious, from the facts of a particular situation.” 3

A statutory provision allowing for such a temporary lay-off does not replace the common law right to treat such action as termination. 4 The minimum standards legislation does not override a greater contractual right or common law protection. 5

There is no obligation upon the employee to request a call back from the employer, prior to suing.  6

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Footnotes

  1. Elsegood v. Cambridge Spring Service 2011 OCA; Stolze v. Addario 1997 OCA, reversing the Divisional Court
  2. Also to the same end is the 2021 BCSC decision in Hogan v 1187938 B.C.
  3. Michalski v Cima OSC 2016
  4. Bevilacqua v. Gracious Living OSC 2016
  5. Machtinger v. HOJ Industries Ltd. SCC 1992; Miranda v. Respiratory Services OSC 2022.
  6. Coutinho v. Ocular Health OSC April 2021