When Can I Claim Wrongful Dismissal?

Please note that if you haven’t file a claim of wrongful dismissal within the 2 years limitation period, you are statutory bar by the Limitations Act, to do so. There was a temporary pause on limitation period as a result of the COVID-19 pandemic from March 16, 2020 to September 13, 2020 by Ontario Regulation 73/20.

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 Wrongful Dismissal 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. The “temporary layoff clock” reset on July 3, 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 the wrongful termination have been impacted by the Pandemic.

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