Temporary Lay-Off – A Complicated Issue

In a recent case[1], the court considered the complex question of a temporary lay-off and the ramifications of a request made by the employer for a return to work. Lay-Off as Termination Many employers believe that the law provides to them the right to effect a short term lay-off. This is a mistaken view. The Employment Standards Act does state that severance or termination pay is not due for a short term lay-off. Our courts, however, have traditionally stated that such a temporary lay-off will be regarded as a termination in law, absent a contract or other agreement which allows the employer such a right. Step Two Mitigation The duty of mitigation requires a terminated employee to take reasonable steps to seek out and accept alternate employment following termination of employment. Our courts have also concluded that even where the same employer offers such employment, there may be well be an obligation to accept this employment, absent a context of conflict or apparent…

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