Constructive Dismissal and the IDEL
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At long last, the impact of Ontario’s Infectious Disease Emergency Leave (IDEL) on employee constructive dismissal claims has been litigated. Employment lawyers have been speculating for a long while about how courts will treat the various employment pivots employers were required to make during the pandemic. We now have our first answer. 

Last week, the Ontario Superior Court of Justice released its decision in Coutinho v. Ocular Health Centre Ltd. and ruled that the IDEL does not take away an employee’s ability to sue for constructive dismissal. 

What’s Constructive Dismissal?

A constructive dismissal occurs when an employer unilaterally and substantially changes an express or implied term of the employee’s contract. The term also needs to have been essential. Changes regarding pay, duties, hours of work etc., can all potentially be constructive dismissals. 
Continue Reading An Important Ruling for Employers on Constructive Dismissal and the IDEL

Over the course of the past year, many people have had reductions in earnings and received some form of government income assistance - EI, CERB or Canada Recovery Benefit (CRB).  In some cases, employees who initially thought that their interruption or reduction in earnings was temporary have had their employment terminated.   In almost all termination situations an employee will be entitled to some form of termination payment from the employer. Employees who are also receiving government income assistance may wonder how their government payments will be impacted by their termination packages.   While not everything is crystal clear at this point, we have some thoughts!  Layoffs and the Deemed IDEL   As noted, in some circumstances, employees have been temporarily laid off. During 2020, these layoffs converted into Deemed Infectious Disease Emergency Leaves (IDEL). Unless an employee is terminated, these Deemed IDELs will continue during the COVID-19 Period, which is presently set to end July 3, 2021.   While an employee is not receiving income, or while they are receiving 50% or less of their pre-COVID income due to COVID-19 reasons, they will typically be eligible for EI or the CRB.   Employees who have not had their employment ended at the end of the COVID-19 Period can expect to either be recalled to work or be placed on a temporary layoff. A temporary layoff can continue for up to 35 weeks if the employer continues the employee benefits.  An employee can expect to continue to be eligible for CRB or EI after the COVID-19 period should they be continued on a layoff.   Terminations, EI, CERB and CRB  An employee who is terminated while on the Deemed IDEL should receive their termination entitlements up to the date of their termination. This means that for the purposes of calculating length of service the employee’s time on the Deemed IDEL should be included. This should also mean that the income replacement benefits that the employee received prior to their termination date should not be required to be paid back, for reasons of double-dipping. The termination package should cover a time period after the termination date and therefore not impact the benefits received prior to the termination date.    While it is not 100% clear how the CRA will treat an employee’s continued entitlement to income replacement benefits following the termination date after the employee receives a termination package there are a few general principles:   EI - Typically an employee will not be entitled to EI when they are receiving income from the employer, and EI will regard termination payments as income. However, the government’s EI FAQs state that “As a temporary measure most separation monies received when you are laid off will not affect the payment of your EI benefits for the claims established on or after September 27, 2020 for one year.” This suggests that EI payments with respect to COVID-19 may be treated differently.   CERB - While the period for which employees could receive CERB is over, the government CERB FAQs indicate that “A severance payment does not impact an individual’s eligibility for the Canada Emergency Response Benefit.” This suggests that receiving a termination package will not disentitle an employee from their CERB. In a recent decision the Ontario Superior Court agreed - see Iriotakis v. Peninsula Employment Services Limited, 2021 ONSC 998.  CRB - The CRB will likely be treated similarly to the CERB, and we expect that an employee will not have to repay the CRB if they also receive a termination package so long as they continue to maintain eligibility. An employee will be required to re-pay $0.50 of CRB for every dollar of net income earned above $38,000 in the calendar year.   Terminated employees who have been receiving income replacement benefits should get advice so that they can understand the impact of their termination packages on their entitlements to these benefits.Over the course of the past year, many people have had reductions in earnings and received some form of government income assistance – EI, CERB or Canada Recovery Benefit (CRB).

In some cases, employees who initially thought that their interruption or reduction in earnings was temporary have had their employment terminated. 

In almost all termination situations an employee will be entitled to some form of termination payment from the employer. Employees who are also receiving government income assistance may wonder how their government payments will be impacted by their termination packages. 

While not everything is crystal clear at this point, we have some thoughts!
Continue Reading Termination Payments and Repaying Government Benefits – EI, CERB and CRB

importance of record of employment
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Employers may brush off the importance of a Record of Employment (ROE) or even have their accountant handle all the details, but it is an important document in the realm of employment law. This document becomes significant when it comes to topics such as terminations, lay-offs, resignations, disability, illness, quarantine, a leave of absence and maternity or parental leaves.  So here are the top 6 things that every employer should know when it comes to a Record of Employment.

Firstly, what is an ROE?

An ROE is a form that employers complete for employees who are receiving insurable earnings who have stopped working and are experiencing an interruption of earnings. This document is a requirement of the Employment Insurance Program. An ROE must be completed even if the employee is not applying for Employment Insurance Benefits.
Continue Reading Top 6 Things to Know Regarding ROEs

State of Emergency measures for employers
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Inclined to believe better days are ahead of us, most of us couldn’t wait to see the end of 2020. While we’re still getting used to writing the new year, 2021 is already off to a rough start with the best news ahead not expected until September 2021 by which time we’re told we can expect that most Canadians will have been vaccinated. 

On January 12, 2021, with public health and financial recovery still in jeopardy, the Ontario government, under the advice of the Chief Medical Officer of Health, announced its latest emergency response measures. Here are the key developments for Ontario employers.
Continue Reading Ontario’s Latest Emergency Response: Key Developments for Employers

Ontario lockdown January 2021
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Happy New Year to our readers! In Ontario, we begin the new year in yet another lockdown situation, which has forced many many small businesses to switch back to curbside pick-up only or, in some cases, stop operating. In southern Ontario, the lockdown will remain in effect until at least January 23, 2021. Full details of the lockdown rules can be found in O. Reg. 779/20, which came into effect on December 26, 2020.  

Staying Open? Make A Safety Plan!

For businesses that remain open and in-person, employers are required to prepare and make available a safety plan. Physical distancing and applicable capacity limits, as set out in O. Reg. 779/20 must be followed. 
Continue Reading Ontario’s Latest Lockdown and a New Grant for Small Businesses