‘They kicked me to the curb’
Hundreds of laid-off workers claiming constructive dismissal over emergency leave
Phil Van Daalen was an industrial mechanic for air compressor company Comairco when the COVID-19 pandemic began.
He was laid off in March 2020 along with other colleagues in London, Ont., as well as others at branches across the country. His employer gave him his record of employment and told him to file for employment insurance.
In the early weeks of the pandemic, Van Daalen had no way of knowing that his layoff would last more than a year. His temporary layoff would morph into an unpaid infectious disease emergency leave (IDEL), a measure enacted by the Ontario government in response to COVID-19. Similar to a temporary layoff, the IDEL allows workers to collect EI and other pandemic supports while guaranteeing a job to return to.
Under normal circumstances, temporary layoffs require businesses to officially terminate and pay severance to employees who have been laid off for 13 weeks, or up to 35 in certain cases. With IDEL, there is no time limit for the period of unemployment.
As the months wore on, with no indication of when he might return to work, Van Daalen felt he’d been wronged. So in the summer of 2020, he decided to take his employer to court for constructive dismissal, asking for
missed salary, outstanding vacation pay, and more.
Van Daalen said he got his vacation pay after mediation, but nothing else, so he decided to move forward with the lawsuit, which is ongoing. Comairco declined to comment on the matter.
After being on leave for more than a year, Van Daalen finally found a new job in Montreal in May 2021.
He said he doesn’t believe what his former employer did was right.
“They kicked me to the curb,” he said.
Employment lawyers say Van Daalen is one of hundreds, if not thousands, of laid-off employees fighting employers over IDEL, claiming they’ve been constructively dismissed. But they say it’s too early to tell whether these claims will be successful, or whether the government’s emergency provision will protect employers more than employees.
On June 1, 2020, the Ontario government temporarily amended the Employment Standards Act (ESA) as it became clear that workers on layoff due to COVID-19 might be off work for longer than expected.
The government introduced the unpaid IDEL to automatically replace COVID-19-related temporary layoffs for nonunionized workers.
Under this amendment, which applied retroactively to March 1, 2020, workers could collect federal emergency support while technically remaining employed. Employees can also voluntarily take unpaid IDEL.
These temporary changes to the ESA have been extended multiple times. On Thursday, the Ontario government announced it would extend unpaid IDEL yet again to Jan. 2.
A spokesperson for the Minister of Labour said in an email that the temporary changes are being extended to support employees and businesses during the fourth wave of COVID-19. (Paid IDEL had already been extended until the end of the year.)
“This will help protect people from losing their jobs through no fault of their own and give employers more time to reopen and return to full capacity,” the spokesperson said.
But Lior Samfiru, employment lawyer and co-founding partner at Samfiru Tumarkin LLP, said IDEL doesn’t protect employers to the extent many might think it does.
Constructive dismissal is when an employee argues they have been effectively terminated by some other means, such as a long temporary layoff or severe reduction in hours, and are therefore owed severance.
Though IDEL was intended to protect employers from constructive dismissal lawsuits, the government’s website itself states that the temporary rules only affect what constitutes a constructive dismissal under the ESA, but not under common law.
It’s this detail that means many employees put on IDEL may have grounds for a constructive dismissal lawsuit, said Samfiru. Many are already going down that path; in fact, the longer IDEL is extended, more and more will do so, he said.
Stuart Rudner, managing partner at Rudner Law, said the legal community still doesn’t have enough precedent to determine how successful these cases will be.
If more decisions come down the pipeline and the majority are in favour of either the employee or the employer, that will help clarify the situation, he said, as well as influence cases settled outside the court.
“It’s impossible to predict,” he said.
There have been three major court decisions so far concerning IDEL and constructive dismissal, said Samfiru.
The first decision ruled that IDEL does not take away a person’s right to sue for constructive dismissal under the common law. Since then, there have been two more decisions, one in favour of the employee and one in favour of the employer — but the latter is being appealed, said Samfiru.
The appeal court’s decision will have a huge “ripple effect” on the thousands of similar cases currently ongoing, he said. Rudner agreed.
“If the decision is in favour of the employee then we will see a deluge of additional claims, and if the decision is in favour of the employer then that will really put a damper on those claims,” he said. IDEL is a job-protected leave, said Rudner.
“What that means is that at the end of the leave, they are entitled to be put back in the same position they had before the leave commenced,” he explained.
At that point, the employer may decide to bring the employees back, or place them on temporary layoff — or even terminate them, said Rudner.
When IDEL ends, Rudner predicts another wave of claims, but this time of wrongful dismissals, where individuals will dispute their terminations and try to get better severance packages.
“There are some businesses who have just been biding time … But whenever that ends, and they have to make a decision, a lot of them are not going to be able to bring everyone back,” said Rudner.
“And that’s when I think we’re gonna see a whole round of new disputes.” This is in addition to more constructive dismissal claims, he added.
Samfiru thinks there may also be a rise in reprisal claims, depending on what route employers decide to take.
Van Daalen’s story is not rare, said Samfiru, and he estimates he’s spoken to hundreds of people who have been on leave for the majority of the pandemic.
“The good news is that at some point before the end of the year, we should have the final word on this from our court of appeal.”