Paid or unpaid continuing layoffs not necessarily termination

Question: I was sent home 6 months ago because of the pandemic. For the first month or so I was able to work from home but after that there was nothing for me to do. My employer has continued to pay me throughout this time but I am going stir crazy. They need my services moving into the future and that is why they have kept me on payroll. My pleas to be given something meaningful to do to fill at least part of my days have led to nothing. This is becoming extremely depressing and frustrating. I feel my mental health is in decline. Can I take the position that I have been constructively dismissed and force them to give me a severance package and end this misery?

Answer: I suspect your employer has been benefitting for at least part of this time from the government subsidy that covers 75% of your wages. It has only cost them 25% of what they have been paying you to keep you “on the line” so to speak. I once had a client many years ago who worked for a bank. The bank had merged with another one and she had been left sitting in an office for 5 months with nothing to do despite all her pleas. She had to show up for work and was sick of reading novels all day long. When I wrote a demand letter indicating that this was humiliating and degrading and a constructive dismissal the case quickly settled. I suspect the bank did not want to be publicly sued for paying my client for months to do absolutely nothing. Their shareholders would not have been impressed. Your situation is not the same. You are not being forced to report to an office and have effectively been on paid vacation, in the eyes of some, for 6 months. In addition, my former client’s predicament was as a result of the negligence and neglect of her employer. Your situation is the result of a pandemic for which there is no precedent in the history of employment law. 

I think the best thing you can do is send a note making it clear that you are not quitting but you would prefer to be released from this agony and be given a severance offer which appropriately recognizes your years of service and position. The worst thing they can do is say no. Other than that, if you have not done so already, start a job search. It would be better for you to quit to engage in meaningful work than to hang around and let your mental health further decline just to try to get a package. 

I’ve been receiving lots of calls from people who have been laid off since March or April without pay and have still not been called back to work. They are losing hope that they will ever be returned to work and suspect that the employer is just putting off the inevitable pain of providing them with a severance package. They are probably right. The government has changed the Employment Standards Act so that these layoffs do not become a termination until January 2, 2021. But that only affects the Employment Standards Act. A judge could theoretically decide that regardless of that Act someone has been effectively terminated by the layoff. Some lawyers are spending money starting claims for these situations but I think they are taking a big risk. If it is a good faith termination and the employer can show that there really was hope of bringing the employee back, they may not succeed. This situation is unprecedented and previous case law about long layoffs will not decide the issue. That would change if somebody else had been hired to do a laid off employee’s job or everyone else had been called back except that one person. In the absence of evidence that the continuing layoff is in bad faith, I think it is a risky lawsuit to bring at this time.