Entrepreneurship & Small Business

Laid off employee refused to come back

  • Last Updated:
  • Jun 1st, 2020 10:25 pm
[OP]
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Feb 16, 2004
1592 posts
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York Region

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
Deal Fanatic
Jan 21, 2018
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Vancouver
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.
[OP]
Deal Addict
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Feb 16, 2004
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York Region
we do have proof of mistakes and numerous conversation re these issues
Deal Fanatic
Dec 3, 2007
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Calgary
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.
Member
Apr 2, 2020
203 posts
88 upvotes
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.
Deal Fanatic
Nov 22, 2015
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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
Member
Apr 2, 2020
203 posts
88 upvotes
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.
Deal Addict
Feb 16, 2018
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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.
Member
Apr 2, 2020
203 posts
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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.
Deal Addict
Dec 13, 2007
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Toronto
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.
Deal Fanatic
Nov 22, 2015
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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
Deal Addict
Dec 13, 2007
1965 posts
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Toronto
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.
Deal Expert
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Oct 26, 2003
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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.
WTB amazon gc @90%
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Apr 2, 2020
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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.
Member
Apr 2, 2020
203 posts
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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.
Deal Fanatic
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Jul 26, 2007
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Toronto
Employer asked the employee to come to work, thereby stop receiving CERB (call CRA and tell them they refuse by having to take care of non immediate family to continue receiving CERB). When employee comes to work, they can call CRA to receive child care funds or disabled person funds but neither apply to him.

Employer offered job through CEWS or regular pay and this is what the government and employer wants. Employee needs to accept this no conditional and come to work unless they have covid19.

I am sure government and employers are encountering this right now, people happy not working and getting $2000. I would call CRA and tell them what's going on minus the firing part and ask for advice.

If you are firing him, get a good reason to terminate for previous work mistakes. Don't do refusal to come to work because they can counter with workplace not safe during covid19.
Newbie
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Aug 10, 2013
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Ontario, Canada
There are many factors than just common law vs. min ESA

ESA is min 1 week per year of service ..(Minimum)

Factors to be considered regarding common law ruling...your age...your location...what position you held...how many years....and on and on

Also...severance pay isn't a give in.....

An employer can retain you for up to 6mnths if they give a recall date (then severance ..maybe)

An employer can also retain you for up to 35weeks (no more then 20 consecutive weeks laid off) with multiple conditions.....they may choose to keep paying your insurable benefits instead of giving you severance or make retirement contributions to an employee plan instead of paying severance...those are also examples of severance pay.

The general consensus is that if you were to be paid severance pay and not anything else similar as I mentioned previously...they can come at you with the minimum which is 1 week per year of service.....it is recommended then at this point you retain an employment lawyer which then will work something out in regards to common law ruling....that's at a cost to you...you will have to figure out if it's worth it to you or not.

Also note an employer does not have to give severance if there was a layoff of 50+ people and also do not have to provide severance if they have a payroll that is under 2.5 million.

Like I said not black and white ...lots of different working pieces in regards to severance.
[OP]
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Feb 16, 2004
1592 posts
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York Region
Thank you all for your responses! i just didnt get a chance to answer to you yet.

Our employee came to pick up his belonging yesterday. He was very friendly and apologetic about the whole situation re not coming back until September. I have not yet answered his Leave of Absence email request.
He mentioned to my hubby that he doesnt really care if we still have the spot for him in September and also said that we would find help with no issues as many people will be looking for a job.
He never called in sick and showed up for work (with late attendance).

We want him to keep his EI as he may be looking for a job in September but we do realize too that we have to do this officially so labour board doesnt come after us if our employee decides to suddenly come back in September (we will fill the position in 2 weeks for sure).

I know that i have to respond to his Leave of Absence request too.

How do we do it the correct way and stay in good working relationship (dont want to burn the bridge)
[OP]
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Feb 16, 2004
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York Region
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
The issue is that employee HAS A JOB to come back to.
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Jan 21, 2018
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Vancouver
NineMileRFDR wrote: There are many factors than just common law vs. min ESA.
Exactly. But that's what common law is all about - guidelines that develop and change over time rather than fixed written rules.

A rough rule of thumb of 1 month of severance notice/pay per year of employment is often quoted. But the situation would be very different for a young employee with no dependents, in a field and location where they can easily find another job vs. an older employee with dependent family who won't easily be able to find another job in their area. Particularly if they were recruited from a good stable position and moved to take this job from which they are now terminated. Many of those factors make a difference.

Employees should also be careful to get good advice before launching a lawsuit against their employer to get more severance pay. If you sue you are deemed to have turned down your employer's offer, and if you lose you may end up entitled to nothing beyond the minimum 2 weeks.

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