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Not necessarily.

Employees should not assume that their employer can lay them off, as there are several decisions from courts which state that layoffs should not be used by employers unless it can be demonstrated that an employee has contracted for this with the employer (directly or indirectly). Specifically, unliteral, fundamental changes to the terms of employment are generally illegal without employee agreement, and usually this in and of itself is insufficient without adequate compensation and/or notice.

Having said this, many employers are relying on the “layoff”, specifically in this COVID-19 era.

In proceeding this way, many employers are likely deciding to lay-off employees in the hope that either employees will agree with it (and they can then argue that there was not dispute about the legality) or, alternatively, a court will sympathize with employers because of the unforeseen nature of COVID-19 and its dramatic impact on the economy.

While this may work, the reality is that employees can equally (and reasonably) argue that they should not be the ones to suffer as a result of the downturn, and in fact, this is a critical time when they need termination pay to support them and their families through this extraordinarily difficult time.  This is particularly the case since there is no telling how long it will take for an employee to find comparable employment in the COVID-19 era and termination pay is specifically intended to help employees during difficult transitionary periods (and to provide greater support when comparable employment is not plentiful).

Bottom line, one should not assume that an employer has an unrestricted right to lay-off and, in fact, being laid off may be viewed as an unjust removal of employees’ rights to economic support.

Finally, and assuming a lay-off is deemed legal, if an employer does not return the employee to work within the timeframe allowed for under the law in the relevant province (and comply with any other conditions relating to layoffs), then the employer automatically becomes liable for termination pay.

If you have concerns regarding your employer and how they have handled your employment during the COVID-19 outbreak, or if you believe you have been wrongfully dismissed or any other questions, please contact Toronto employment lawyersSultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.