conflictanalyticslab

By: Kritika Seth

In a layoff, one important question which you may be asking yourself is whether your layoff is illegal.

In Canada, if an employer chooses to terminate a position, there are certain guidelines that they must abide by. They must either provide the employee with at least 2 weeks’ written notice of the termination, or otherwise, in lieu of this notice, pay the employee 2 weeks of regular wages.

The Labour Program has the view that dismissal is the last and most serious step that an employer can take in the disciplinary process. In general, only 3 grounds exist for this kind of a disciplinary action[1]:

  1. Incompetence: an employee lacks the skills or abilities required in order to perform the assigned duties
  2. Negligence: an employee ignores some or all of their duties, or is careless in performing them
  3. Misconduct: an employee breaks the rules of workplace conduct, which impacts the output of the organization

If you find that your dismissal does not fall under these 3 grounds, then you may claim for unjust dismissal or constructive dismissal.

Unjust Dismissal

Information regarding if a layoff is illegal can be found in the The Canada Labour Code, which outlines the measures it takes to protect employees who have completed at least 12 months of continuous employment with the same employer.[2]

This Code also outlines the procedure for making a complaint against a dismissal in the case of an unjust dismissal or constructive dismissal. If an employee feels that they have been unjustly dismissed, they can request a written statement from their employer which provides the reasons for dismissal. It is mandatory that the employer reply within 15 days after the request is made.[3]

They also have the option of filing a complaint alleging unjust dismissal at any Labour Program office no later than 90 days from the date of the dismissal. It is thereafter the employer’s responsibility to demonstrate that the termination occurred for valid economic reasons.[4]

Constructive Dismissal

A constructive dismissal differs from an unjust dismissal in that the employer has not directly fired the employee but has rather failed to comply with the contract of employment in a major way or has unilaterally altered the terms of employment of the contract.[5] These unilateral changes often force the employee to quit.

In the case of a constructive dismissal, the employee must soon after indicate that they do not agree to the new conditions of the employment.  What distinguishes a constructive dismissal from an unjust dismissal is that the employer has failed to meet its contractual obligation. The seriousness of the employer’s failure must be considered when deliberating whether a constructive dismissal has occurred.[6]

What does this mean for me?

The procedures which govern layoffs vary between jurisdictions and must be adhered to in every case. Deciding if your layoff is illegal may prove to be difficult.

MyOpenCourt’s layoff tool can help. By asking you a few questions about the circumstances of your situation, we can help you determine the legality of your layoff.

To see all of MyOpenCourt’s tools, please visit: https://tool.myopencourt.org/

Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.

[1] ‘Unjust Dismissal’, Canada.ca, 2020 https://www.canada.ca/en/employment-social-development/services/labour-standards/reports/unjust-dismissal.html#shr-pg0

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] ‘Constructive Dismissal’, Canada.ca, 2020 https://www.canada.ca/en/employment-social-development/programs/laws-regulations/labour/interpretations-policies/constructive-dismissal.html

[6] Ibid.