If your employer tells you that you are “on layoff and subject to recall,” it means that the layoff is temporary and that you may be called back to work.
You may be wondering whether you still have a job, whether you should look for new employment, and whether you qualify for Employment Insurance benefits.
Temporary layoffs are not automatically permitted in every workplace. Even if an employer describes the layoff as temporary, you may still have legal rights if the layoff was imposed without your agreement or if you are never recalled.
Understanding what it means to be on layoff and subject to recall can help you decide what steps to take next and whether you should seek legal advice about your options.
What Does “On Layoff and Subject to Recall” Mean?
Being on layoff and subject to recall means your employer has temporarily stopped providing you with work and pay but says it expects to call you back to your position in the future.
Unlike a permanent termination, a recall suggests that the employment relationship has not completely ended. Your employer is essentially placing your job on hold.
Under Ontario’s Employment Standards Act, 2000, temporary layoffs are subject to strict rules about their duration. Depending on the circumstances and whether benefits continue, a temporary layoff can only last for a limited period before it may become a termination under the legislation.
However, temporary layoffs are not automatically allowed simply because the ESA recognizes them. Unless your employment contract specifically permits temporary layoffs, or layoffs are an established part of your industry practice, an employer who places you on a layoff may expose itself to a claim for constructive dismissal.
If you recently received a layoff notice, understanding your rights after being laid off can help you assess whether the employer’s actions were lawful.
Is a Lay-Off Different from Being Fired?
Yes.
A layoff is generally intended to be temporary. The employer expects that work will resume and that employees will return to their roles through the recall process.
Being fired, or terminated, means the employer has decided to permanently end the employment relationship.
That distinction matters because different legal rights may arise depending on the situation.
A temporary layoff that exceeds the limits set out in the ESA can become a termination for statutory purposes. Likewise, where an employer imposes a layoff without contractual authority, employees may argue that the layoff fundamentally changed the employment relationship and amounted to constructive dismissal.
Our discussion of layoffs and constructive dismissal explores situations where employees may have remedies despite being told the layoff is temporary.
Whether a layoff is lawful depends on factors such as your employment agreement, workplace practices, the duration of the layoff, and the specific facts of your situation.
How Serious Is a Recall?
A recall should be taken seriously because it affects both your employment status and the choices available to you.
If your employer contacts you to return to work, ignoring the recall without understanding the consequences could affect your entitlement to Employment Insurance benefits or other rights connected to your employment.
At the same time, receiving a recall notice does not necessarily mean that every issue surrounding the layoff disappears. Questions may still arise about whether the original layoff was proper, whether the recall terms are reasonable, and whether your position remains substantially the same.
If you are never recalled, the situation may eventually become a termination under employment standards legislation. Employees in that position often wonder what rights they have if they experience a temporary layoff and are not recalled to work.
Because the consequences can be significant, consider seeking legal advice before making decisions that could affect your claims or benefits.
Do I Get Employment Insurance If I Get Laid Off?
Frequently, employees do qualify.
Employees who experience a temporary layoff are often eligible to apply for Employment Insurance benefits if they meet the eligibility requirements established by the federal government.
Employers typically issue a Record of Employment indicating an interruption of earnings, which allows employees to apply for EI while they are without work.
Receiving EI benefits does not necessarily prevent you from pursuing legal advice about whether the layoff itself was lawful. The availability of EI and your employment law rights are separate issues.
If you are recalled to work, your EI entitlement may change depending on when you return and how many hours you work. You should ensure that the information you provide to Service Canada accurately reflects your circumstances.
What Happens If a Temporary Layoff Becomes Permanent?
Sometimes employers intend to recall employees but never do.
When a temporary layoff extends beyond the period permitted under the ESA, the law may treat the employment relationship as terminated. At that point, you may become entitled to statutory termination entitlements.
Some employees may also have claims beyond the ESA minimums. In some situations, they may have rights arising under common law wrongful dismissal principles.
If you believe your employment has effectively ended, you should understand the distinction between minimum statutory entitlements and broader claims that may exist through a wrongful dismissal action.
Federally regulated employees may also have access to different remedies, including protections relating to unjust dismissal complaints under the Canada Labour Code.
Can a Temporary Layoff Amount to Constructive Dismissal?
In certain situations, yes.
Constructive dismissal occurs when an employer unilaterally makes a fundamental change to an essential term of employment.
For many employees, regular work and income are central terms of the employment relationship. If an employer places an employee on a temporary layoff without contractual authority or established industry practice permitting it, courts may find that the employee was constructively dismissed.
Constructive dismissal claims are highly fact-specific. The wording of your employment agreement, the history of the workplace, and how the layoff was implemented can all affect the analysis.
If you believe your layoff was imposed improperly, learning more about constructive dismissal claims may help you understand the legal framework that could apply.
A temporary layoff does not always mean you must simply wait and hope to be recalled. Depending on the circumstances, you may have options worth exploring with an employment lawyer.
Sultan Lawyers practices exclusively in employment law and workplace immigration law, proudly serving clients in Toronto and across Canada.
Legal Disclaimer: This post is general information only. Nothing in it constitutes legal advice, and nothing here applies to your specific situation. Every case turns on its own facts, and the only way we can advise you on yours is through a proper consultation and engagement. Reading this post does not create a lawyer-client relationship with Sultan Lawyers. If you have questions about your situation, contact us directly.
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