Entrepreneurship & Small Business

Laid off employee refused to come back

  • Last Updated:
  • Jun 1st, 2020 10:25 pm
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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.
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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
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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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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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Nov 22, 2015
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peteryorkuca wrote: 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.
People don't realize that CERB is not like EI...

There is no requirement to accept job offers or even fill out reports.

The only main requirement is that you were laid off within the eligibility periods.
Member
Oct 24, 2010
368 posts
217 upvotes
Ottawa
Pronoia wrote: 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.
Yup.

The labour code may say 2 weeks, but court decisions tend to award way more than that in the case of an involuntary termination of employment, particularly if it was not reasonable.

Common Law severance pay is used to mitigate the risk of a lawsuit. Employers pay a severance amount based on past court decisions, not based on the labour code, because by doing so they mitigate the risk of being sued, the legal costs associated with their defense, and the subsequent likely payout required. It's cheaper just to pay out the common law severance up front, depending on the risk of being sued.

Actually, my understanding as well is that many of the layoffs that were given out as a result of the pandemic would, in normal circumstances, likely be considered constructive dismissal and would demand severance if challenged in court unless there was a layoff clause in the employment contract. However, employers have generally accepted the risk of issuing those layoffs because of the force majeure aspect of the pandemic crisis.
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Jan 31, 2006
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edkate wrote: 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)
Since the ROE stated "shortage of work", just answer him, " I acknowledge your leave of absence, but can not guarantee him a spot on September", You don't need to be kind to him, as he already abandoned you. Report him to Service Canada/CRA, he is cheating on CERB/EI, taking care of someone else kids.
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Dec 10, 2004
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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.
Not really true. Not to mention even contract workers are entitled to severance if they've been working for a company for many years. These days some companies try to get away from paying various benefits by only hiring contractors, who work the same hours as regular employees year after year. Well, the law is on employee side and an employment lawyer can determine that easily.

As for OP, from my experience, the employee was laid off. You have very little obligation at this point. You asked to return to work and your request was ignored and not for valid reasons(eg health). You are clear to hire anyone you want. Personally, I would also made a CRA report. Seems like everyone is abusing the system these days and finding ways to not work and get paid.
Last edited by dazz on May 27th, 2020 8:05 pm, edited 1 time in total.
Sr. Member
Dec 17, 2009
539 posts
485 upvotes
Toronto
If you laid off an employee, you need to pay him severance pay.
Unfortunately, you will need to wait for his finally decision. I called labour relation for a similar case. She told me I should keep contacting that employee and keep offering that employee the same job and ....
I asked her how many times and how long do I need to do that before I can close the file, she said that is no definite answer, but in the mean time I can hire a temp person. ar.... what a great suggestion.
Service Canada told me not to amend anything on ROE, even the code(reason the issuing ROE)
They said if there are multiple reasons, just stick with the first one.
That’s mean Service Canada or CRA has no way to know which employee is refused to work.
[OP]
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Feb 16, 2004
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York Region
We just spoke to employment lawyer:
He suggested the following:
1. Ask him to resign - as he refuses to come back (until September). This way he is no longer eligible for EI or CERB.
2. Leave ROE as is with Shortage of work code --> this way employee has EI. But lawyer suggested to draw a letter package so this employee doesnt come back after us from wrongfull dismissal and lawyer would draw a Release letter from employer. This would cost $500 :(
3. Full Dissmisal or termination by our company - 2 weeks termination notice and severance pay, to be backdated (whatever this is). ROE states Dismisal.

Of course lawyer wants to make money on release pkg but i am also hesitant about the whole situation if government decides to do an audit. We want to do by the books.
[OP]
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Feb 16, 2004
1537 posts
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York Region
tofubb wrote: If you laid off an employee, you need to pay him severance pay.
Unfortunately, you will need to wait for his finally decision. I called labour relation for a similar case. She told me I should keep contacting that employee and keep offering that employee the same job and ....
I asked her how many times and how long do I need to do that before I can close the file, she said that is no definite answer, but in the mean time I can hire a temp person. ar.... what a great suggestion.
Service Canada told me not to amend anything on ROE, even the code(reason the issuing ROE)
They said if there are multiple reasons, just stick with the first one.
That’s mean Service Canada or CRA has no way to know which employee is refused to work.
not true! lay off and dismissal are two different things.
[OP]
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Feb 16, 2004
1537 posts
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York Region
dazz wrote: Not really true. Not to mention even contract workers are entitled to severance if they've been working for a company for many years. These days some companies try to get away from paying various benefits by only hiring contractors, who work the same hours as regular employees year after year. Well, the law is on employee side and an employment lawyer can determine that easily.

As for OP, from my experience, the employee was laid off. You have very little obligation at this point. You asked to return to work and your request was ignored and not for valid reasons(eg health). You are clear to hire anyone you want. Personally, I would also made a CRA report. Seems like everyone is abusing the system these days and finding ways to not work and get paid.
Only worked for us for almost 2 years (will be in August)
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Jul 10, 2014
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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.
I believe there is actually a law mandating 1 week's pay for every year served in Ontario but the common law is generally 1 month's pay for every year served.

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