Temporary foreign workers are not immune to being terminated from their employment in the time of COVID-19. Below we discuss some key considerations if you are a temporary foreign worker who has recently been terminated from your employment.
What is an “Open” vs. an “Employer-specific” Work Permit?
Generally, temporary foreign workers are either issued an “open” or “employer-specific” work permit. If an employee is issued an open work permit (e.g. a post-graduate work permit or a work permit issued pursuant to the International Experience Canada program) then, subject to any further conditions set out on the work permit (e.g. restrictions on working in the sex trade etc.) that employee can work for any employer they choose for the duration listed on their work permit as long as they adhere to all other conditions of their work permit.
Most employees, however, are issued employer-specific work permits, meaning that they are only permitted to work in the position and for the employer listed on their work permit.
When the employment of an employee with an open work permit is terminated, that employee can remain in Canada and seek out work with a new employer, subject to any further condition of their open work permit. However, issues arise when the employment of employees with employer-specific work permits is terminated.
Do I Need to Leave Canada if My Employment Has Been Terminated?
The termination of a foreign worker’s employment does not automatically invalidate the foreign worker’s work permit.
While a work permit authorizes a foreign worker to engage in employment with the employer listed on their work permit, it does not create a legal obligation on the part of the foreign worker to do so. As a result, even if the foreign worker resigns or has their employment terminated, the foreign worker is generally entitled to remain in Canada as a temporary resident until their permit expires, as long as he or she does not violate their status by working or studying without authorization (which could result in the commencement of removal proceedings).
Although the termination of employment does not invalidate the holder’s work permit, terminated temporary foreign workers may face complications if they decide to leave and re-enter Canada on the basis of their permit. In such cases, foreign workers should consult with a lawyer to ensure that their experience at the border will go smoothly.
Does My Spouse Need to Leave Canada?
The spouse of a temporary foreign worker is often eligible for issuance of an open work permit based on their spousal relationship with the temporary foreign worker.
When a foreign worker’s employment is terminated, the spousal work permit can continue to be considered valid subject to the discretion of Immigration, Refugees and Citizenship Canada.
What Will Happen to my Permanent Residency Application?
If your employment has been terminated and you have a permanent residency application in process, you should consider consulting with counsel to determine the impact of the termination on your application. The timing of a termination of employment can negatively impact a temporary foreign worker’s opportunity to become a permanent resident of Canada, depending on what stage in the permanent residency process the temporary foreign worker is at.
Does My Employer Need to Report the Termination of My Employment? Do I?
There is generally no obligation on the employer to report the termination of employment to Immigration, Refugees and Citizenship Canada (“IRCC”) or to the Canada Border Services Agency.
If the work permit was issued pursuant to a Labour Market Benefits Plan however, then Service Canada does require that the employer advise Employment and Social Development Canada that the employment has been terminated.
If the employer nominated the temporary foreign worker for permanent residency under a provincial nomination program (“PNP”), then there is generally a requirement that the employer advise the PNP of the termination.
A temporary foreign worker generally does not need to report the termination of their employment to IRCC but may need to report it pursuant to a permanent residency application in progress. Temporary foreign workers should seek legal advice regarding reporting changes to their permanent residency application.
What do I do if My Employment has been Terminated?
If you are a temporary foreign worker and your employment has been terminated you should consult with an employment lawyer who is versed in both employment law and workplace immigration issues to better determine your rights and whether you might be entitled to compensation such as a severance package related to your termination.
Temporary foreign workers with employer-specific work permits may find it more difficult to mitigate the loss of employment by finding another position, as a new employer-specific work permit would first have to be obtained by a new employer. In these cases, the temporary foreign worker may be entitled to a more generous termination package and related severance pay.
All temporary foreign workers should seek out legal counsel upon the termination of their employment to ensure that the termination package they have received is in line with their entitlements.
There may also be a way to continue your status in Canada after the expiry of your work permit. If you are a temporary foreign worker and need assistance with a recent termination of employment, severance package review or changes to your immigration status, we invite you to contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or here.
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