Being laid off is a funny concept. It’s like you are still employed except you don’t show up for work and don’t get paid. But, you ask, if I am not being paid, haven’t I then been fired? Am I not entitled to wrongful dismissal damages and all the other good things that we frequently write about in this column? To this we give the quintessential lawyers answer: “Probably, but it depends.”

First of all, if you are unionized, the issue of layoffs will be covered in your collective agreement and you can ignore the balance of this article. Unionized employees have the disadvantage of being unable to quit and sue for constructive dismissal when they are laid off. Now back to non-union workers.

The complicating factor here is that Ontario has legislation called The Employment Standards Act, which purports to govern employment in Ontario. Except it doesn’t. The courts have routinely held that the act sets out the “minimum” rights for employees in the province. As a result, if someone simply looks at the act to determine their rights they will almost always come up with the wrong answer.

This is especially true when it comes to figuring out if you are on layoff or if you have been fired and are therefore entitled to damages for wrongful dismissal. So how do you know if you have been fired or not?

The act states that if the layoff is less than 35 weeks in a period of 52 consecutive weeks and a number of conditions are met, including that the employee continues to receive “substantial payments from the employer,” you haven’t been fired.

However, the Court of Appeal has stated: “The fact that a layoff was conducted in accordance with the Employment Standards Act is irrelevant to the question of whether it is a constructive dismissal.”

In short, even though the act says an employer can lay off an employee for up to 35 weeks, you can still be considered “fired” as a result of being laid off.

So, you go to work, and you are advised that you are being laid off. How do you know if your employer has really fired you and has to pay you?

The first question an employee must ask themselves is how much do they like their current job? If you really like your job, then, regardless of whether or not you have been fired, maybe it is worth it to you to wait out the layoff and return to your job. But what if you aren’t crazy about your job? What if you actually need a paycheque? What if you are relatively marketable so do not want to wait? Then you need paid notice while you look for another job and you should figure out if you have been legally laid off, in which case you are not able to sue for constructive dismissal, or have been actually fired, in which case you can sue for constructive dismissal.

There are a number of factors to consider in determining if you have been fired. For example, does your employment contract allow the employer to lay you off? If so, and your employer is meeting the minimum requirements of the act, such as the layoff being longer than that permitted by the Employment Standards Act, you may be laid off and not fired. Similarly, if you accept the layoff in some affirmative way, you cannot later change your mind and say that that layoff was really a constructive dismissal.

On the other hand, if there is no provision in your employment agreement allowing for a layoff or you don’t have an employment agreement, you have probably been fired. By the way, the courts are extremely reluctant to imply such an agreement into an employee’s contract (even if unwritten) with their employer. This means that if an employer argues that the employee should have known that they could be laid off because in the past other similar employees have been laid off, that likely won’t fly.

As a result, if you don’t have a contract allowing layoffs and the layoff is for more than a very short term and particularly if no payments are being made then you can almost always sue for constructive dismissal.

Such an action, if successful, would lead to the same damages as an action for wrongful dismissal. In other words, you, the employee, would be entitled to damages as a result of the termination of your employment.

The moral of this story is that if your employer tells you that you are laid off and even if the employer says they are able to lay you off pursuant to the Employment Standards Act, you almost assuredly can sue for constructive dismissal. And infectious disease emergency leave (IDEL) does not change that.

The issue of being laid off versus being fired can be complicated but for a lot of laid off employees the option of suing for constructive dismissal is a real likelihood that should not be overlooked.