‘A court is never going to look to the placement of a clause, they're going to look to the substance’
“As long as the employment contract contemplates the possibility of layoffs, then it's not going to be a constructive dismissal if an employee is placed on a temporary layoff, because the contract is already considering that that's something that would happen.”
So says employment lawyer Jeff Rochwerg of Turnpenney Milne in Toronto, after the Ontario Superior Court of Justice dismissed a worker’s constructive dismissal action following a temporary layoff.
Salytics Inc. is a Toronto-based company providing data and technology consulting services. It hired the worker in 2013 as a lead developer, and five years later he became a senior technical consultant.
The worker’s employment contract included a termination section with three separate clauses. One allowed Salytics to terminate the worker’s employment “at any time for cause.” The second allowed the company to terminate the worker’s employment without cause “at any time” by providing the statutory minimum notice or pay in lieu, unless the worker was laid off within the first six months of employment – in which case he would receive his salary up to the end of six months.
The third clause in the section stated that “in the event a temporary layoff is ever required, it may be implemented in accordance with the requirements of the (Ontario) Employment Standards Act, 2000 (ESA).”
In 2024, Salytics began...
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