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Service industry business affected by COVID-19

Probably not and they likely will not even try.

That would not normally be my answer but right now it is. The Employment Standards Act says that if you lay somebody off without benefits for more than 13 weeks or with benefits for more than 35 weeks it becomes a termination. Sometime ago, however, the courts said that those Employment Standards Act provisions only apply to employees where it is an implied or explicit term of their Employment Contract that they can be laid off without notice. Otherwise it's a termination.

While the Ministry of Labour still ignores that case law it is in fact the law of Ontario. Even in good economic times, employees don’t often pull the trigger of claiming a termination. If you happen to have an employee who is about to retire or go work somewhere else, they might try to claim termination because they have nothing to lose. Most employees, however, will be hopeful that things get better and that they will be called back to work. If they take the position they have been terminated that recall becomes extremely unlikely. Unfortunately, in these times it's not like there’s going to be a lot of other jobs to jump to. If they do try to claim a termination and end up before a judge they are going to face a difficult argument. There is a big difference between laying somebody off as a result of a pandemic nobody could have predicted and laying somebody off because you let a competitor get the better of your and lost a big client.

Gradual economic slowdowns are far more predictable and the employer is expected to plan ahead and give advanced notice of changes to the employment relationship.

Sudden pandemics that change the economy within he span of a few weeks are not predictable. I believe that if a judge can find a way to deny the claim for termination she will. It is hard to claim you are a victim when everyone else is in the same lifeboat with you.
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com