Laid off employee refused to come back

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Jun 1st, 2020 10:25 pm

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May 25th, 2020 9:13 am

edkate [OP]: Deal Addict; Feb 16, 2004; 1537 posts; 59 upvotes; York Region

May 25th, 2020 9:13 am

Laid off employee refused to come back

Good morning all,
We have a business that was shut down in March. We are still mandated to be closed.

We had employee that we had to lay off in mid March as there was no business activity, so ROE was issued with Shortage of Work code (no temp lay off).

We are about to open again in 2 weeks and called our employee with such great news.
Employee simply stated that he is not coming back as he's got a friends's child (10-11 yo) to take care of until September.

I asked him to send me official email.
A day later he sends me Leave of Absence request until September due to child care issues (he has 2 adult kids himself and not dependent on him).

We have to find his replacement asap and we already posted the ad and have numerous applicants.
Our business cannot go on without huge complications if a replacement is not hired asap..

We had few issues with him (and our clients because of this employee) in the past so we were about to fire this person (with verbal and written warnings).

QUESTION: ARE WE OBLIGATED TO TAKE HIM BACK IN SEPTEMBER after legislation was changed due to Covid -19 ????? (even though he was laid off officially)

Last edited by edkate on May 26th, 2020 9:52 am, edited 1 time in total.

35 replies

May 25th, 2020 10:19 am

Scote64: Deal Addict; Jan 21, 2018; 2691 posts; 2688 upvotes; Vancouver

May 25th, 2020 10:19 am

Don't mention that "not a good employee" issue unless you have documented proof, e.g., you warned them in writing about past behaviour, documented that they ignored the warning and continued the same behaviour, then you gave them a final warning that they would be terminated if they kept it up, and you have documented proof that they were warned and did keep it up. The bar is set very high here, and raising unsubstantiated allegations will get you nowhere.

Focus on the actual issues. They want a leave of absence and return to work later in the year. You don't want to do that, so you can say no. Unavailability is certainly reasonable cause to terminate, although severance pay or notice would be required. The question is, did they quit, or did you terminate? Again, the rules here are pretty lax and generally interpreted in favour of employees. You should figure that you will owe at least normal termination pay, and that the ROE will say that you terminated them rather than they quit.

Last edited by Scote64 on May 26th, 2020 10:12 am, edited 1 time in total.

+1

May 25th, 2020 10:33 am

edkate [OP]: Deal Addict; Feb 16, 2004; 1537 posts; 59 upvotes; York Region

May 25th, 2020 10:33 am

we do have proof of mistakes and numerous conversation re these issues

May 25th, 2020 11:32 am

mucat: Deal Fanatic; Dec 3, 2007; 5490 posts; 701 upvotes; Calgary

May 25th, 2020 11:32 am

You are not obligated to take him back but you should let him know asap so that he can plan ahead.
His refusal to come back is understandable as he has other obligation.

+2

May 25th, 2020 11:50 am

Pronoia: Jr. Member; Apr 2, 2020; 118 posts; 45 upvotes

May 25th, 2020 11:50 am

Remind him that he now no longer qualifies for the CERB. If you're concerned about a wrongful dismissal, talk to an employment lawyer. There's going to be alot of employees using the COVID as an excuse to go after employers, always protect yourself.

May 25th, 2020 11:53 am

KanataKG: Deal Fanatic; Nov 22, 2015; 5573 posts; 4932 upvotes

May 25th, 2020 11:53 am

Pronoia wrote: ↑ Remind him that he now no longer qualifies for the CERB. If you're concerned about a wrongful dismissal, talk to an employment lawyer. There's going to be alot of employees using the COVID as an excuse to go after employers, always protect yourself.

Why wouldn't they qualify for CERB anymore?

They got laid off for COVID related reasons and did not quit voluntarily. They can continue to collect CERB until the 4 months is up

May 25th, 2020 12:08 pm

Pronoia: Jr. Member; Apr 2, 2020; 118 posts; 45 upvotes

May 25th, 2020 12:08 pm

KanataKG wrote: ↑ Why wouldn't they qualify for CERB anymore?

They got laid off for COVID related reasons and did not quit voluntarily. They can continue to collect CERB until the 4 months is up

He can't collect it if he has a job to go to. If the government finds out he'll have to pay it back with huge penalties. Tell him to call CRA and confirm if that was his plan.

May 25th, 2020 12:09 pm

HghSsociety: Sr. Member; Feb 16, 2018; 970 posts; 960 upvotes

May 25th, 2020 12:09 pm

These threads come up time and time again and there is always so much misinformation in them. Here is the correct answer and the only answer you will need.

An employer has the right to terminate an employee at any time for any reason. (As long as it does not violate human rights) The only question that has to be determined is, "is the employee entitled to severance?" If an employee is fired without cause, severance must be paid, or be given notice in lieu of severance.

If an employe is fired with cause, severance may or may not have to be paid depending on the situation.

Wrongful dismissal is the same as being fired without cause and the only outcome that will occur if this happens is severance must be paid.

+2

May 25th, 2020 12:17 pm

Pronoia: Jr. Member; Apr 2, 2020; 118 posts; 45 upvotes

May 25th, 2020 12:17 pm

HghSsociety wrote: ↑ These threads come up time and time again and there is always so much misinformation in them. Here is the correct answer and the only answer you will need.

An employer has the right to terminate an employee at any time for any reason. (As long as it does not violate human rights) The only question that has to be determined is, "is the employee entitled to severance?" If an employee is fired without cause, severance must be paid, or be given notice in lieu of severance.

If an employe is fired with cause, severance may or may not have to be paid depending on the situation.

Wrongful dismissal is the same as being fired without cause and the only outcome that will occur if this happens is severance must be paid.

Be careful with severance. Common law states severance is equal to 1 month of pay for every year they've worked for the company. If he is a long time employee it could be very costly.

+1

May 25th, 2020 12:36 pm

slavka012: Deal Addict; Dec 13, 2007; 1584 posts; 78 upvotes; Toronto

May 25th, 2020 12:36 pm

Pronoia wrote: ↑ Be careful with severance. Common law states severance is equal to 1 month of pay for every year they've worked for the company. If he is a long time employee it could be very costly.

There is no law mandating this. 2 week is all they are entitled to, unless agreed to other amount.

May 25th, 2020 12:40 pm

KanataKG: Deal Fanatic; Nov 22, 2015; 5573 posts; 4932 upvotes

May 25th, 2020 12:40 pm

Pronoia wrote: ↑ He can't collect it if he has a job to go to. If the government finds out he'll have to pay it back with huge penalties. Tell him to call CRA and confirm if that was his plan.

Impossible for government to find out... There's no paper work proving anything anyways.... If anything, the employee is getting an email from OP saying they don't have a job to go back to in September.

There's no requirement to accept all job offers in order to qualify for CERB anyways. These are extenuating circumstances and the employee obviously has other obligations after being laid off already. They pretty much definitely qualify for CERB... Even if they accepted the job and made less than $1000/mo, they can still collect the CERB on top of that

May 25th, 2020 12:41 pm

slavka012: Deal Addict; Dec 13, 2007; 1584 posts; 78 upvotes; Toronto

May 25th, 2020 12:41 pm

Pronoia wrote: ↑ He can't collect it if he has a job to go to. If the government finds out he'll have to pay it back with huge penalties. Tell him to call CRA and confirm if that was his plan.

I was wondering how that would have played out early into lockdown. On one hand it makes sense that employee has to go back to work. On the other hand this is unprecedented situation and recalling laid off employees probably was never a common thing. I would not be so certain that employee must come back to work or risk loosing CERB.

May 25th, 2020 1:02 pm

divx: Deal Expert; Oct 26, 2003; 33437 posts; 3612 upvotes; Winnipeg

May 25th, 2020 1:02 pm

Since everyone was officially laid off, then everyone would need to be officially rehired, therefore if you don't have a position open in September then there won't be any hiring in September, simple as that.

+1

May 25th, 2020 1:07 pm

Pronoia: Jr. Member; Apr 2, 2020; 118 posts; 45 upvotes

May 25th, 2020 1:07 pm

KanataKG wrote: ↑ Impossible for government to find out... There's no paper work proving anything anyways.... If anything, the employee is getting an email from OP saying they don't have a job to go back to in September.

There's no requirement to accept all job offers in order to qualify for CERB anyways. These are extenuating circumstances and the employee obviously has other obligations after being laid off already. They pretty much definitely qualify for CERB... Even if they accepted the job and made less than $1000/mo, they can still collect the CERB on top of that

All the government has to do is interview the Employer and ask if they offered the employee a job. I've been audited multiple times. The government is very good at getting their money when they want it.

A year from now when the government is strapped for cash a lot of people will be audited.

+1

May 25th, 2020 1:14 pm

Pronoia: Jr. Member; Apr 2, 2020; 118 posts; 45 upvotes

May 25th, 2020 1:14 pm

slavka012 wrote: ↑ There is no law mandating this. 2 week is all they are entitled to, unless agreed to other amount.

There is no law, that's why COMMON LAW is used. If the employee decides to file a claim the judge won't use employment standards to determine the settlement, you'll most likely have to pay WAY more. That's what happened to me.

It's like when a couple lives together but isn't married. No law exists that determines how their assets are divided so COMMON LAW is used.

Common law for severance is generally accepted to be one month of pay for every year the employee worked for the company.

I'm not a lawyer, but I am speaking from experience.

+1

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