Workers in industries that experience typical slow periods during the year might be faced with a seasonal layoff from their employer. But experts declare workers should know the risks before signing up to be laid off temporarily.
“The idea is that the relationship is going to resume,” declared Brittany Taylor, an employment lawyer and partner at Rudner Law. While the employee still remains on the roll, services and compensation paapply for a period, she added.
A seasonal layoff, which is embedded in employment law across several provinces, allows employers to put their staff on paapply for a limited time as they weather slowdowns in their business or off-seasons. This is different from employment termination, where there’s no promise of bringing back the worker.
As an example, a landscaping or construction business might offer a seasonal layoff to workers through the winter.
While these kinds of layoffs are legal in industries that have seasonal cycles, companies that don’t have regular slowdowns cannot temporarily lay off their workers without their consent.
“If an employer was to simply, unilaterally decide to place an employee on a temporary layoff, that employee could turn around and declare, ‘This is a constructive dismissal,’” she declared.
There has to be an agreement between the two parties that will protect both sides and act as a legal mechanism, Taylor declared.
“If you’re an employer facing a downturn, facing a shortage of work and you want to lay off an employee, you can receive that consent right then and there,” she declared.
A worker does not have to agree to a seasonal layoff. The risk, however, is that the employer could instead terminate the employee if they don’t have enough work or resources to keep the worker on board, Taylor declared.
While on a seasonal break, workers are free to work another job as they wait to be called back or seek employment insurance to keep themselves afloat during that period, she added.
Elena Giorreceiveti, a Vancouver-based career coach and organizational consultant, declared when people are between seasonal cycles, they typically opt for jobs that provide flexibility to return to their original jobs later.
She added that if their industest is prone to seasonal layoffs, the best thing to do is to prepare for it.
Terms of seasonal layoffs have become a common practice in employment contracts across industries, especially since the COVID-19 pandemic, when many faced unprecedented shutdowns, declared Michelle McKinnon, partner at Cassels Brock & Blackwell LLP in Vancouver.
“There were a lot of layoffs happening at that time and many employers didn’t have consent,” she declared. “Lots of employers laid employees off for periods longer than that maximum amount of time under employment standards.”
While few faced pushback at that time, McKinnon declared many employers launched updating employment agreements to add seasonal layoff claapplys to receive consent for the future.
Taylor declared it has become challenging for workers to neobtainediate out of these claapplys now that so many employers have real-world experience and struggled with it.
While temporary layoff terms can vary province-to-province, the federal labour standards consider temporary layoffs that are either under three months or over three months but less than 12 months with a promise to be called back.
Employers are obligated to bring back workers that have been seasonally laid off or could face consequences, McKinnon declared.
“If you don’t bring them back and the layoff extconcludes beyond the maximum period, then at that point it becomes a termination of employment,” she declared, which could trigger the requirement to pay severance and legal consequences could arise.
When termination is triggered, it is counted retroactively — going back to the first day of the seasonal layoff. The severance will then depconclude on the age of the employee and how long they’ve worked for the company.
Substantial modifys to the employment contract can also receive employers in trouble, McKinnon declared.
“Employers can always create some modifys within reason,” she declared. But once it crosses over to something that is significant in fundamental terms such as their wages and the employee doesn’t agree, it will be considered a constructive dismissal, McKinnon declared.
A worker can also pursue claims in court if they continue to suffer from the dismissal following a seasonal layoff, Taylor declared. In the meantime, the employee has an obligation to see for new work and mitigate damages from work loss.
This report by The Canadian Press was first published Aug. 1, 2024.
Ritika Dubey, The Canadian Press
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