Temporary Lay-Off

If you are employed in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The Act sets minimum standards a company must comply with. If it does not, you have a right to file a claim with the Ministry of Labour. If you are currently working for the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
If you are member of trade union and work under collective agreement, you may not be covered under the Act.
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if found to be owing. The referee decision is final and binding on both parties.    
In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to the Board’s hearing to deal with the matter. Under present environment, it rarely does so. The employees and the employers are expected to arrange their own representative at the hearings whether at the officer’s or referee level.
Obviously, the employer has advantage over the employee in these circumstances as it has more resources than the employee. The question arises, should the employee also engage the services of a professional to deal with these matters. It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.
It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the evidence of the employer, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.   
If you have worked for the company for at least 3 months, the Act requires you must be given a written notice before your employment can be terminated. Your employment can be terminated for any reason (including no reason), except for pregnancy and parental leave and reprisals. It does not stop the employee from quitting, for any reason (including no reason).
Generally speaking, the maximum notice required is 8 weeks, if you have worked for more than 8 years with the company and the minimum is 1 week, if you have worked for less than 1 year but more than 3 months.
A Temporary lay off is defined as a lay off of not more than 13 weeks in any period of 20 weeks or if it is more than 13 weeks then one of the following conditions must apply:
(i)                  the employee continues to receive payments from the employer
(ii)                the employer continues payments for benefits under a “bona fide” pension or insurance plan
(iii)               the employee receives supplementary unemployment benefits (S.U.B.’s)
(iv)              employer has a S.U.B. plan but the employee does not receive the S.U.B. payments
(v)                where the employer recalls the person within time(s) fixed by the Director.
Note: Lay off is limited to 35 weeks within a period of 52 weeks, after which it is no longer a temporary lay off.
A person on a temporary lay off is not entitled to notice of termination.
A person who is recalled within 13 weeks or 35 weeks does not return to work within reasonable time is not entitled to notice of termination as it is considered as voluntary resignation.
Where the lay off is no longer a temporary lay off, the employee is considered to be terminated on the first day of lay off.
The Director of Employment Practices Branch of the Ministry of Labour can extend the period of temporary lay off beyond 13 weeks or 35 weeks and under such circumstances, the temporary lay off is a specified period as determined by the Director.
A person is considered to be laid off if s/he receives less than one half of the amount s/he normally receives in a non overtime work week.
Three exceptions apply:
(i)                  Employee not able or not available to work.
(ii)                Employee was subject to disciplinary suspension
(iii)               Employee was not provided with work due to strike.
This information is provided for guidance only and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at esaconsulting@hotmail.com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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