In a recent case, the court considered the complex question of a temporary lay-off and the ramifications of a request made by the employer for a return to work.
Lay-Off as Termination
Many employers believe that the law provides to them the right to effect a short term lay-off. This is a mistaken view. The Employment Standards Act does state that severance or termination pay is not due for a short term lay-off. Our courts, however, have traditionally stated that such a temporary lay-off will be regarded as a termination in law, absent a contract or other agreement which allows the employer such a right.
Step Two Mitigation
The duty of mitigation requires a terminated employee to take reasonable steps to seek out and accept alternate employment following termination of employment. Our courts have also concluded that even where the same employer offers such employment, there may be well be an obligation to accept this employment, absent a context of conflict or apparent unfairness.
The Immediate Case
The plaintiff had been given a temporary lay-off which the court agreed was the same as termination of employment. He was then 50 years old, with 23.5 years of service and employed as a Health & Training Specialist. His notice period claim was assessed as 18 months.
This being said, the important aspect of the case was that two weeks after the notice of lay-off, the employee was given a letter advising that he would be recalled to work within a few days. The response to this advice was a letter from the plaintiff’s lawyer stating that he would not be returning to work as the relationship had broken down. The plaintiff was then again formally recalled to work and again he declined.
The court found that the refusal to accept the recall to work was unreasonable. There was no evidence presented of a contentious or unfair relationship between the parties. He was hence deprived of this damage claim for wrongful dismissal. This was a disaster for the plaintiff.
A Complex Issue Requires Careful Advice
This is a very difficult issue with severe consequences for being wrong. A recall notice must be treated with extreme caution. Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.
 Ironically the plaintiff could have demanded full payment of his statutory entitlement which he did not do. It would be unlikely that the company would have paid these sums and this could have been used as a reason not to return to work.
 He was awarded 3.5 weeks pay in the sum of $4,800. The costs issue has yet to be decided.