Time Limits for Filing An ESA Claim?

Usually you MUST file an ESA claim after an unfair termination within two years, which is referred to as the “limitation period” in employment law context and in civil litigation. If you file a claim within the two-year limit after an illegal termination an employment standards officer will investigate the claim.

Similarly, if your employer owes you wages, or have unpaid amount overdue in arrears, the overdue wages must have been earned within the two years before the ESA claim was filed for the wages to be recoverable under the  Employment Standards Act  (ESA). This two-year period is referred to as the “recovery period”. The limitation period and the recovery period may or may not be the same depending on when the wage was owed.

Time Limits for Filing an ESA Claim Extended During the COVID-19 Pandemic

From March 16, 2020 to September 13, 2020 Ontario Regulation 73/20 suspended limitation periods and recovery period the ESA. This period is referred to as the “suspension period”. During the suspension period, if your original limitation period would have ended during or after the suspension period, it has been extended by roughly 6 months to provide you with more time to file your claim during the pandemic. Similarly, the recovery period has been extended accordingly during COVID-19.

Can I File An ESA Claim if My Employer Has Suspended My Work?

Do note that you have to be terminated to file an ESA Claim for ESA termination pay. Overdue unpaid wages, however, you can still file an ESA claim while your position has been suspended by your employer.

Whether you have been terminated in a sense that you received a working notice or a termination letter from the employer or you have been on a temporary leave of absence in a sense that your employer told you that you don’t need to go back to the workplace until further notice have drastically different legal employment law treatments.

Can I Claim Wrongful Dismissal if My Employer Has Suspended My Work?

Do note that you have to be terminated to file a lawsuit for wrongful dismissal if you have been terminated unfairly. Whether you have been terminated in a sense that you received a working notice or a termination letter from the employer or you have been on a temporary leave of absence in a sense that your employer told you that you don’t need to go back to the workplace until further notice have drastically different legal employment law treatments. You actually have to wait until you are being terminated by your employer to be able to claim wrongful dismissal in Court in employment law context.

Why Can’t I Claim Termination Pay When My Job Position Has Been Temporarily Suspended?

During the COVID-19 pandemic, INFECTIOUS DISEASE EMERGENCY LEAVE (IDEL), O. Reg. 228/20 was introduced. During this time a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID-19 is deemed to be on a job-protected infectious disease emergency leave and will neither be considered being laid off nor being constructively dismissed. Although most of the time employers do not need to pay benefits for laid off workers, an employee that’s on IDEL is not “considered” being laid off, and thus shall continue to receive benefits.

In September, 2020, O. Reg. 492/20 was introduced where the Ontario Government amended O.Reg. 228/20 to extend deemed emergency leave under Employment Standards Act (ESA) to January 2, 2021. In December 17, 2020, O. Reg. 765/20 was introduced where the Ontario Government further amended O.Reg. 228/20 to extend deemed emergency leave under ESA from January 2, 2021 to July 3, 2021.

 

On or about June 4, 2021, O. Reg. 412/21 was introduced where the Ontario Government further amended O.Reg. 228/20 to extend deemed emergency leave under ESA from July 3, 2021, to September 25, 2021.

 

​The “temporary layoff clock” reset on September 26, 2021: Unpaid temporary layoffs lasting 13 weeks or more will be deemed a termination of employment; and paid temporary layoffs lasting 35 weeks or more will be deemed a termination of employment, if the deadline wasn’t further extended. Only time will tell whether the deadline will be further extended.

 

There is currently no legal jurisprudence on point in related to wrongful dismissal claim. But a Judge in an employment law case will probably follow the same legal principles when ruling on a wrongful dismissal case.

 

Click here to Learn about how wrongful termination have been impacted by the Pandemic.

Wrongful Dismissal FAQs

Wrongful Dismissal FAQs:

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