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This post is the final part of a three-part series on employment after layoffs due to COVID-19. See part one here, and part two here.

As the province continues its fight against COVID-19, more businesses are being given permission to reopen, subject to compliance with COVID-19 related public health measures.

For those fortunate enough to be recalled to work, it is possible that your work will not look or feel the same as prior to the COVID-19 global pandemic shutdowns.

With the above in mind, the following provides the top five (5) things that employees should look out for (and how to respond) following a return to work:

1. I was recently provided with a new employment contract (or letter/email describing the terms of my employment). Do I have to sign/agree to this?

We strongly urge employees to carefully review any changes which an employer imposes or attempts to impose on your employment. The reason is, if you do not respond to unilaterally-implemented changes to your employment, you may be found to have agreed to these changes, even if this was not your intention.

Many employers have already implemented changes to the terms and conditions of their employees’ employment, and we expect this to continue throughout and following the transition back to work. Some of these will be new changes implemented following a post-COVID return to work, while others will take the form of temporary changes (implemented prior to quarantine) being made permanent.

For this reason, we strongly recommend that employees carefully review any changes to the terms of their employment contract and they respond strategically (whether this is in the form of raising concerns with the employer and/or renegotiating other terms of employment to compensate for the adjustments).

Further, and because these actions can have a direct impact on your legal rights, it is often best to have these matters reviewed by legal counsel so that you are comfortable with the strategy being pursued.

2. I was provided with new duties upon my return that were not a part of my role before COVID-19. Do I have a choice in the matter?

Yes, you do have a choice.

Specifically, if the change is significant enough you have a legal right to refuse the change. Your employer would then need to decide whether they will reverse the change or not. This may also include implementing the change only after providing the employee with reasonable notice of the adjustment.

If the employer does not either reverse and/or provide sufficient notice of the change, then you may be in a position to claim constructive dismissal, meaning that you would be entitled to termination pay and support during your transition to alternative employment.

Cases of constructive dismissal are particularly complicated, and we strongly recommend that before you take any such steps that you discuss the matter with legal counsel. The reason is that employers will often respond to claims of constructive dismissal that the employee has resigned so that they are denied any payments.

3. My employer wants to pay me less than what I received before being placed on layoff. Do I have to accept this?

In most cases, no.

Upon returning to work, your employer cannot make significant changes to your job such as compensation or number of hours worked without triggering a termination of employment, unless you clearly and unequivocally agree to this change. This applies whether or not the change involves an adjustment to a formal contract.

Depending on how significant the changes are, as mentioned above, this may result in a claim for constructive dismissal, entitling you to a range of remedies, including termination pay, general damages, and further support in transitioning to alternative employment.

We strongly suggest, however, that before you take any step to claim constructive dismissal, that you first explore available alternative ways to resolve the matter. This may include discussing the matter with employment counsel to ensure that you are following a good strategy that takes into account all relevant factors, including the impact of COVID-19 on the workplace.

4. I am being treated differently and noticing behavioural differences in my co-workers since returning to work. What do I do?

Workplaces will likely look different following a return from COVID-19 restrictions and you may notice behavioural changes among colleagues. This does not mean, however, that you are required to tolerate inappropriate behaviour, whether in the form of bullying, harassment or human rights violations.

The law specifically provides protection from harassing and discriminatory behaviour. This includes both common law rights and statutory protection under the Occupational Health and Safety Act and the Ontario Human Rights Code. Employees also have the right to be protected from being punished as a result of pursuing their right to be free from harassment and/or discrimination.

If you believe that you are being treated unfairly upon, we strongly suggest that this be raised with the appropriate authorities within your company/organization. If you are unsatisfied with the result/feedback, then it may be worth contacting employment counsel to address the matter further and ensure that your rights are protected.

5. I am not confident that my employer is abiding by public health measures. Is there anything I can do?

All employers must provide a safe working environment. This is protected by both common law and statute, including the Occupational Health and Safety Act. If an employee feels unsafe, they can refuse to return to work if they can prove that it is unsafe or likely to be unsafe.

Having said this, an employee is expected to be reasonable in their refusals and to work with the employer on an ongoing basis to assess the situation. This means that if an employer has adjusted the workplace to address safety concerns, then it may be risky to refuse to return to work.

Specifically, your refusal could be deemed in law as an abandonment of employment or resignation, leaving you with no rights to return to work or termination pay, and possibly ending any entitled to employment related government support.

If you have any questions relating to COVID-19 and your employment, whether you have been temporarily laid off, wrongfully dismissed, called back to work or otherwise, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at malhert@sultanlawyers.com.


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