Friday evening, the Government amended Ontario’s Employment Standards Act, 2000 (“ESA”) through Ontario Regulation 228/20 to provide employers with some comfort that they will likely not be found to have constructively dismissed an employee under the ESA if they have had to temporarily reduce their employees’ hours and/or wages, or put their employees on unpaid leaves of absences, provided COVID-19 is legitimately cited as the basis for such actions. Every situation, however, needs to be reviewed, as the employee still may have a common law right.
Please see the various sections below.
Subsection 1 – Interpretation and application: The “COVID-19 period”, as defined by the Regulation, commences March 1, 2020 and ends six (6) weeks after the COVID-19 emergency declaration ends.
Subsection 4 – Prescribed leave, deemed leave: you are deemed to be on declared emergency leave if your hours are temporarily reduced or eliminated due to COVID-19. You will be entitled to reinstatement unless your position genuinely no longer exists.
Subsection 5 – When employee not on leave: if you were terminated prior to May 29, 2020, you are not on declared emergency leave (and thus not be eligible for reinstatement).
Subsection 6 – Reduction in hours, wages not a layoff: after May 29, 2020, and until the COVID-19 emergency declaration is over, if your hours are temporarily reduced or your wages temporarily reduced or eliminated, due to COVID-19, it is not a layoff, and therefore does not give rise to termination or severance under the ESA.
Subsection 7 – Reduction in hours, wages, not a constructive dismissal: after May 29, 2020, and until the COVID-19 emergency declaration is over, a temporary reduction or elimination of hours, or a temporary reduction of wages, due to COVID-19, is not a constructive dismissal under the ESA.
Subsection 8 – Complaint deemed not to have been filed: new complaints to the Ministry of Labour about any of the above amounting to a constructive dismissal, shall be deemed to be thrown out.
Author - Extraordinary Damages in Canadian Employment Law