Employee survival guide to COVID-19: Lay-offs and Terminations

Kevin Marshall

April 15, 2020

Do employers need the consent of their employees to reduce their labour costs?

For non-unionized workers: yes, in many instances. But know when you can - and should - speak up and when you cannot, or should not.  Know your rights and assert them wisely. 

For unionized workers: the collective bargaining agreement applies - please check with your union representative right away. 

As the law currently stands, you have the right to advance a claim for constructive dismissal if your employer makes the following changes:

First, reducing your wages by more than 15%;

Second, adding significant additional duties to your existing duties; 

Third, a temporary lay-off (exceptions:  your employment agreement expressly allows for a temporary lay-off, or you work in an industry that widely accepts lay-offs, e.g. manufacturing or construction).

If your employer proposes any of these measures, consider options beyond your consent.  Ensure that all changes, even if temporary, are in writing.  Do not sign anything new before having a lawyer review it first. 

Your employer is almost certainly facing unprecedented financial hardship in these tumultuous times.  But don't be afraid to inform your employer of your own COVID-related difficulties, secure in the knowledge that you have been a valued employee.  

Your best option may be a compromise that works for you and for your employer.  Draw your employer's attention to some of the government initiatives to assist businesses during the COVID-19 pandemic, such as the Work-Sharing Program or the Temporary Wage Subsidy, the details of which are referenced here.  Assure your employer that your preference is to continue working, even if the government is covering 75% of your wages or your hours are reduced.

Also consider other creative options that are mutually beneficial:  Can you reasonably assume the duties of another worker who was recently let go? Can you take a work-protected medical leave of absence to care for a loved one with COVID-19?  Can you work from home until your children return to school? 

If you are unsatisfied with the option(s) presented by your employer, you may wish to advance a constructive dismissal claim.  This signals a divorce from your employer.  Request all vacation pay, back wages and receipt of your Record of Employment.  Be sure to seek a competent legal opinion before you proceed with this option. You can reach me by e-mail at kevin.marshall@kmlawyer.ca and by phone at 416-383-0550.