A lay-off: do you have to take it lying down?

A lay-off: do you have to take it lying down?

Maybe not.

The Employment Standards Act certainly does include lay-off provisions. They are complicated to navigate. But they do permit an employer to lay-off an employee for certain periods of time under certain conditions, with the expectation that the employee will be recalled to work.

However, the Employment Standards Act isn’t necessarily the end of the story.

The "common law" (legal doctrine distilled from case law decisions) is also relevant in lay-off situations.

We’re not speaking here of unionized situations which are controlled by a collective agreement: that’s a "labour law" situation in which you are going to want to work through your union rep.

But what about non-unionized positions?

Did your contract of employment stipulate that your employment was subject to lay-off?

Has there been a course of conduct over the years in which you accepted seasonal or periodic lay-offs?

If not, a lay-off may constitute "constructive dismissal": a fundamental change in the terms and conditions of employment. There aren’t many changes more fundamental than no more work and no more pay.

Which means that you may want to choose to initiate an action for pay in lieu of notice.

How much pay in lieu of notice? That will depend again on a whole host of factors: how long you’ve worked for the employer, your age, your experience, your level of responsibility . . . and you will have to be looking for work and keeping a record of your job search.

But if you have been laid-off, there may be some recourse.

Everyone’s circumstances are different, and a decision to call a lay-off a "constructive dismissal" has other consequences you will want to consider carefully, with legal advice tailored to your circumstances.

Depending upon your circumstances, you might not choose to take that lay-off lying down.