Lay-offs under the Infectious Disease Emergency Leave (“IDEL”) provisions enacted by the Ontario government were rendered permissible. Employees laid off in this manner remained entitled to sue under the common-law for constructive dismissal. Most didn’t expecting the lay-off to be short lived. Some were never recalled to work.
At the end of this month, IDEL will end. Many believe laid off employees will be outside of the two year limitation period for commencing a claim but are they?
Under the ESA, termination is deemed to occur where the layoff (post-IDEL) is longer than 13 weeks without benefit continuation and 35 weeks with. Where termination is deemed under the ESA, employees are entitled to statutory payment in lieu of notice as well as statutory severance payments and such payments are not subject to mitigation, meaning whether the employee is working elsewhere is irrelevant.
These entitlements can be for as much as 34 weeks’ wages.