A little known fact is that Canada issues thousands of temporary work permits each year. While many foreigners are granted open work permits (which provides permission to work for almost any employer), most permits are for “closed” employment, meaning that foreign workers are limited to one employer and often in a specific location.
Foreign workers with closed work permits face additional complications if their employment is terminated. This is because they do not have the flexibility to simply find alternative employment, as a Canadian or permanent resident or, alternatively, a worker with an open work permit would. This is an increasingly relevant issue in a strained labour market such as the one we are currently experiencing given the challenges of the COVID-19 pandemic.
The following is accordingly intended to address relevant employment issues for foreign workers (particularly those with closed work permits), including in relation to immigration rules, termination, severance pay, and what to do if a foreign worker feels that he/she has been wrongfully dismissed.
Do I Need to Leave Canada?
Assuming the temporary foreign worker holds a valid work permit when their employment is terminated, they will not need to immediately leave the country. Temporary foreign workers are permitted to remain in Canada pursuant to the terms of their existing permit.
If a temporary foreign worker has a closed work permit (meaning the work permit is tied to employment with a specific employer), then the worker cannot engage in any work except for with the employer listed. Temporary foreign workers holding open work permits can immediately look for work with new employers if they abide by the terms of their valid work permit.
How Can I Get A New Work Permit?
If a temporary foreign worker is dismissed from their employment and they hold a closed work permit, they will need to obtain a new work permit (open or closed and listing the new employer) before they can begin work for a new employer.
There are a variety of ways that an employee may obtain a new work permit. It is important for the temporary foreign worker to consult with a lawyer to ensure that all potential work permit options are canvassed and considered.
How Long Will It Take to Get the New Work Permit?
Processing times for immigration applications are determined based on several factors, including the specific office in which the application is being processed and the volume of applications at any given time. For example, as of the time of publishing this article, the average processing time for work permit applications submitted from within Canada is 142 days.
In response to lengthened processing times in relation to COVID-19, Immigration, Refugees and Citizenship Canada (“IRCC”) released a new public policy which allows eligible temporary foreign workers to submit an application for a new work permit and to transition to the new role without waiting for the new work permit to first be issued. Those wishing to take advantage of this new policy must make a request to IRCC and wait for approval of that request (usually issued within ten (10) days) before transitioning to new employment.
What If I Want to Challenge the Termination of My Employment?
Employers in Ontario are permitted to terminate the employment of their employees as long as that termination is completed in a lawful manner. Employees in Ontario are entitled to notice and/or pay in lieu of notice of the termination of their employment. If a temporary foreign worker feels that the notice and/or pay in lieu of notice that they received upon the termination of their employment was inadequate, they should contact an employment lawyer to review their potential entitlements.
If a temporary foreign worker thinks that their employment was terminated for discriminatory reasons, then they should contact an employment lawyer to have the circumstances of their employment reviewed in relation to the relevant human rights legislation in Canada.
Can I get termination pay?
Yes, foreign workers are entitled to the same rights as a Canadian or permanent resident in relation to termination of employment. This includes all rights under the Employment Standards Act, 2000 in relation to termination and severance pay, and entitlement to Employment Insurance (assuming basic eligibility is met).
How do I know if I have been wrongfully dismissed?
As a foreign worker, you have the same right to transition pay to assist you in finding alternative employment. This can include significant and often higher compensation than a Canadian or permanent resident because of the additional challenges of finding employment as a foreign worker (particularly if you hold a closed work permit). Courts have accordingly often granted foreign workers much higher notice payments to support them as they transition to another employer (and deal with the additional immigration challenges).
Given this, foreign workers who have had their employment terminated may wish to speak with counsel with a strong background in both employment and immigration law so that they can advise appropriately as to whether you have been wrongfully dismissed in law and, if so, what payments you are may be entitled to support you in transitioning from your last employment.
If you are a foreign worker with questions regarding your status with immigration or employment issues such as wrongful dismissal, severance, or discrimination at work, or if you are an employer and have any questions relating to COVID-19 and hiring temporary foreign workers, or its impact on the Canadian labour market please contact Toronto employment and immigration lawyers Sultan Lawyers at 416-214-5111 or here.
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