'It's important for an employer to ensure that the employee who is laid off is well informed as to exactly what's going on'
The Manitoba Labour Relations Board has dismissed a worker’s complaint that she was improperly terminated while on a job-protected leave – but the entire matter probably could have been avoided with better communication from the employer, according to Mark Alward, an employment lawyer at Taylor McCaffrey in Winnipeg.
“The most important thing is the information that you provide [to the employee] – even if you have to temporarily lay them off, if you can provide them with some information that says, ‘Our intention is to bring you back, this is not a termination,’” says Alward. “It's always important for an employer to ensure that the employee who is going to be laid off is well informed as to exactly what's going on and what the intentions of the employer are – that will avoid confusion and complaints.”
COVID symptoms
The worker joined Houston Properties, a property management company in Winnipeg, as a leasing manager in December 2019. Her compensation package included accommodation in one of the buildings that she managed.
In late March 2020, the worker became ill. She was tested for COVID-19 and told to self-monitor at home. The worker advised Houston Properties that she had been tested, and they told her to advise them of the test results when they became available.
Although the worker had COVID-19 symptoms and was self-isolating, she didn’t request sick leave or take any time off. She told the company that there were certain duties she could perform at home and others she couldn’t because they required her to go out. The company tried to provide the worker with a desktop computer to help with her work, but the worker refused it and requested a laptop – which her employment agreement stipulated she should have but had not yet provided. She continued to perform some of her duties with a company cellphone.
Given the limitations of being at home and using only a cellphone, the amount of work the worker performed decreased, as she couldn’t perform duties such as checking building safety and interacting with residents. Several weeks went by like this, but the worker didn’t provide any information on her medical status or when she would be able to return to full duties.
On April 9, the manager said that she was feeling very sick. She hadn’t yet received the results of her COVID-19 test.
Temporary layoff
Eight days later, Houston Properties determined that it would have to temporarily lay off two staff due to the uncertainty of the pandemic and a shortage of work. Since there still wasn’t any indication of when the worker would be able to return to full duties, the company chose her as one of the staff to lay off. In its notice of temporary layoff, the company indicated that the worker would not have to pay her rent during the layoff period.
The worker asked if laid-off staff were entitled to a “severance package,” which she claimed referred to additional compensation for the layoff. However, the company interpreted this to mean that she was accepting a permanent layoff. It issued a record of employment stating “shortage of work” as the reason for issue with an unknown date of recall. It also paid the worker all compensation still owing, plus two weeks’ pay as required by the employment agreement.
Read more: Employers should directly ask workers requesting time off due to pandemic-related reasons if they are seeking a statutory leave, says a Manitoba employment lawyer.
On May 6, Houston Properties wrote to the worker explaining that she had taken a permanent layoff and all severance pay and bonuses and been paid out, so she had to vacate her apartment. The worker responded by denying that she had terminated her employment. They agreed that the worker could stay in the apartment as a tenant.
Lack of communication
The main issue was that there was a lack of communication between employer and employee, says Alward.
“The employer communicated that this was a temporary layoff, the employee asked for severance and, essentially, the employer assumed that that meant the employee was not going to be coming back to work and was treating this as a termination,” he says. “If the employer would have communicated a little bit better with the employee as to exactly what they meant in terms of the temporary layoff, they may not have been in this circumstance.”
“If the employer would have said, ‘There's not a severance unless the employment relationship is over and that's not the intention here, this is a temporary layoff because of the lack of work that's available’, they likely would have avoided going to a hearing on this and, frankly, probably paying more in legal fees than they would have otherwise liked to.”
In June, Houston Properties hired someone else to perform the worker’s old duties.
The worker filed a claim with the Manitoba Employment Standards Division, claiming that she had been terminated from employment while on a protected leave. She said that she had been on Public Health Emergency Leave under Manitoba’s Employment Standards Code – which had been added to the code for employees unable to perform their work because of isolation or illness related to the pandemic – as she had been unable to return to work in April after falling ill.
The division dismissed her claim and the worker appealed to the Labour Board.
The board acknowledged that at the time of the worker’s temporary layoff, the economic outlook was uncertain due to the pandemic and Houston Properties’ operations were negatively affected. It also noted that the worker was entitled to a public health emergency leave.
However, the board found that while the worker was sick and self-isolating, she continued to perform some of her job duties and she didn’t request any time off or formally invoke a job-protected leave. The purpose of Public Health Emergency Leave was to ensure that employees taking COVID-19-related leave didn’t lose their jobs, be negatively impacted, or show up to work while ill, but neither of these purposes applied to the worker’s situation, said the board, which noted that the worker didn’t think the temporary layoff was related to her health status until she realized that her employment had been terminated.
Read more: An Alberta worker’s request to negotiate a severance package was not a resignation, found the Alberta Court of Queen’s Bench.
The board determined that the worker was not on a job-protected leave when she was terminated. It noted that it wasn’t a voluntary resignation and the worker disputed her termination once she realized it, but she didn’t take any further steps – and negotiated a rental agreement to maintain her apartment – or claim any entitlement to termination pay. The worker’s appeal was dismissed.
Alward notes that although the employer successfully defended itself, it was risky to simply assume the worker had resigned when she raised the issue of severance.
“There are cases out there that talk about how the employer has an obligation to make sure that [resignation] was what was intended and it wasn't a spur-of-the-moment decision or a misunderstanding,” says Alward. “If there's any confusion about if a person has resigned, you're better off as an employer to doublecheck to ensure that that's really what they intended to do – then you can have a better dialogue.
“If the [employee] does decide to leave, then so be it, but if they turn around and say, ‘Well, actually no, I don't mean to resign, you've taken that incorrectly,’ or ‘I said something that I shouldn't have said’, then you can avoid the potential of some fallout.”
See 204 Holdings Ltd. and S.R., Re, 2021 CarswellMan 905.
