Can employee refuse callback to different job

Usually, an employer can lay off an employee for a maximum of 35 weeks before a termination pursuant to the Employment Standards Act of Ontario is triggered and termination and severance pay are owed. Doug Ford suspended that rule until January 2, 2021. Unless he extends that date further in the next month, many employers and employees are going to face some hard choices. Employers that may simply have no cash flow are forced to either bring an employee back for whom they have no work or not bring them back but then owe termination and severance pay. Pursuant to the Employment Standards Act that is one week per year of service to a limit of 8 and, for employees of more than 5 years where the payroll is in excess of 2.5 million, a further one week per year to a limit of 26. It is all owed within 2 weeks of the date they fail to bring the employee back. If the employer does not pay and declares bankruptcy, other than a few thousand dollars the employee can collect from the government, they are out of luck. The directors and owners of the business are not personally liable.

What if you were called back to work in time but to a different job? If the new job is substantially similar and pays pretty much the same, you may have to take it. It would not likely be considered a constructive dismissal. Often, however, what the employer thinks is a substantially similar job, the employee believes is a humiliating demotion or a substantial and significant change in the terms of employment. The only way to get a good idea of what a judge or the Ministry of Labour would decide is to speak to an experienced Employment Lawyer. There are no general propositions that can answer all the questions. A few examples, however, may help. 

Imagine you were a sales person working mostly from your home on the road near where you live. If you were called back for the same pay but to an inside sales job commuting to the head office an hour and a half each way that could be a very substantial change in the terms of your employment. You may have the right to take the position you have been constructively dismissed and receive a package. But things can get trickier. What if the industry you are in is non essential and there is a general lockdown? You can’t work on the road because you can’t get in to see anyone. The employer has had to move all sales staff inside and does not have the money to invest in the software needed to allow you to work remotely. What choice do they have? It is possible that given these exceptional times a judge may have some empathy for the employer’s position and decide that you should have been more flexible. But what if commuting 3 hours a day rendered your child care responsibilities impossible? That would likely turn things in your favour.The point is that every instance is very fact and person specific. In the same set of circumstances but where you live 5 minutes from the office you would have no claim for constructive dismissal. Many people may feel that in the midst of a pandemic they don’t want to have to fight for a severance and look for new employment and will accept changes imposed by the employer without their consent.The ground is shifting for both employers and employees and has been since March. Both would like nothing better than for things to return to normal.