Employers in the City of Kawartha Lakes, tips to you for recalling employees from lay offs during the pandemic:
- Must recall before end of 13-week statutory period (within rolling 20 week period); maximum is 35 weeks during any 52-week period if certain conditions apply – otherwise deemed termination – More information about lay off rules and requirements is here: https://wardlegal.ca/31586368607034
- Terms of recall must comply with the requirements of the Employment Standards Act, at a minimum
- Check employment agreement, workplace policy or collective bargaining agreement, if any – must provide “greater right or benefit” compared to Employment Standards Act
- No formal notice requirement/procedure, unless in an employment agreement, workplace policy or collective bargaining agreement, if any
- If not recalled by statutory deadline, statutory entitlements triggered for most employees (but check for exemptions to statutory entitlement – construction workers, etc.)
- May also trigger common law pay in lieu of notice (i.e., severance)
- Employees must return, if recalled, within a reasonable period of time, or forfeit statutory entitlements (termination and severance pay, etc.) [Employment Standards Act Policy and Interpretation Manual, ss. 2(1), para. 7]
- Employer must prove failure to return after recall – must be clear, written notice of recall and employee could read and understand the recall notice
- Avoid verbal recalls – do it in writing
- Avoid recalling for a short period of time to avoid paying statutory entitlements [Highland Cove Marina v. Van Velden and Babcock, Dec. 22, 1983, ESC 1531, Sheppard)
- Must return to pre-lay off position – must be confirmed in the written notice of recall
- Return to work notice should identify those employees being recalled, dates of recall and intention to provide a work schedule to those recalled
- If staggering recalls, should recall in reverse order of lay offs (i.e., those laid off first will be recalled first), if possible
- Return to work notice should confirm the recall is on the same terms of employ as pre-lay off
- If any change to pay, work hours, etc. to be applied, must specify that in the written recall notice (and confirm intention to return to pre-lay off terms as soon as possible)
- Return to work notice should explain further lay offs may be required, depending on developments and, if so, terms of initial lay off will apply
- Return to work notice should remind recalled employees to notify the federal government (i.e., end the CERB, EI, etc.) to avoid double-dipping
