Few are the entrepreneurs who did not have to make heart-breaking decisions when the COVID-19 pandemic struck last March: reduction of work hours, temporary wage reductions and, regretfully, terminations and layoffs.
If the governmental emergency measures[1] have offered a certain respite on the hardships endured by the workers and employers alike, both anticipate the eventual return to a certain form of normalcy. Looking forward to the progressive reopening of given economic sectors as of the coming May 4 and 11, here are a few practical tips to keep in mind when planning the recall to work of laid off employees.[2]
Unionized Context
Naturally, the employer must refer to the terms of the collective agreement. Assuming the latter entitles recall privileges for more than six months, the employer must keep on its radar the earliest of the following dates: the anniversary of the layoff or the expiry of the recall privilege. It is indeed at that moment that the employer is bound to pay the compensatory indemnity, unless the employees are not recalled because of a superior force (force majeure) or that they are recalled to work for a period at least equal to the duration of the notice they would have got.
Typically, employers will be required to recall their unionized employees by seniority and, when applicable, enforce their “bumping” right on the positions of their less senior colleagues. Collective agreements usually set a precise and constraining mechanism that employers ought to revise with attention and follow to avoid grievances and arbitrations.
Non-unionized Context
Employers here have a greater freedom of action. Provided that they exercise their management right in a reasonable fashion that is justified by the organizational needs, employers can recall their workers according to various criteria, seniority being merely one among them. As always, employers must however avoid to base their decision on forbidden grounds, for example, in retaliation to the exercise of a right provided by the Act respecting labour standards or in discrimination of right protected by the Charter of human rights and freedoms.
Likewise, employers must ensure that the recall of non-unionized employees is made no later than six months after the layoff, failing which the latter will be considered as a collective dismissal[3] that will expose the employer to pay the required indemnity.
RSS has recently published on the applicable statutory notices and indemnities when a layoff that was meant to be temporary approaches the decisive six-month mark : Achieving Orderly Layoffs During COVID-19
Since each situation is unique and requires a detailed examination, our Labour and Employment Law Group remains available to help entrepreneurs in planning and executing the recall of their workers. [1] The Canada Emergency Response Benefit and the Canada Emergency Wage Subsidy, among others [2] For employers of Quebec jurisdiction. [3] When at least 10 employees of the same establishment during a two-month period are affected.