I was temporarily laid off from my employer. They said it would last for up to thirteen weeks. During this layoff period, I am still helping my employer from home working about one day a week and receive payment for the hours spent working. Back in June, upon request from my employer, I signed a Declaration for Exemption From Completing Claimant Reports and agreed to participate in the work-sharing program. Now my employer is asking me to work 3 days a week without committing to a date when the work will turn full-time. What is my legal obligation to this request? The temporary layoff period is ending soon. Can I insist on working full time? If my employer does not agree to working full time, can I view this as evidence of wrongful dismissal and start legal action against my employer?
For non-union employees, a unilateral reduction in work hours and pay may constitute a constructive dismissal. A constructive dismissal occurs when your employer makes fundamental changes to terms of employment without your consent. You are not obliged to work under the new terms. You can resign and seek a severance package as though you were dismissed. Not all reductions in pay or hours will amount to a constructive dismissal. The change must be fundamental in nature.
In the context of COVID-19, however, various provinces implemented measures to protect businesses forced to reduce hours and pay due to the pandemic. In Ontario specifically, the Province passed regulations allowing employers to temporarily reduce work hours and pay without triggering a termination or constructive dismissal during the COVID-19 period (March 1 to January 2, 2021). At least for employment standards purposes, such a reduction is not a constructive dismissal during this period. The regulations are not binding upon whether a court would assess you as constructively dismissed under common law, but are likely to be influential.
Beyond the COVID-19 period, if you are asked to work 3 days per week, down from a regular 5-day work week, this is a significant change. Simply because you agreed to a temporary work share program does not mean you agreed to a permanent reduction in hours or pay. State your concerns. Ask for full-time hours. If that isn’t an option right now, inquire about when full-time work will be restored. Do not assume it is permanent. If your employer does not return you to full-time hours and pay, without any clear end in sight, you may resign and claim constructive dismissal damages. Consult with an employment lawyer first before resigning.