Recall date required

Ponciano Arzadon Jr. was the plant manager of Spectrum Plastics Co. Ltd. As a response to increased returns of defective products and the loss of a number of valued employees, the president of Spectrum, Arturo Arzadon, took over as plant manager temporarily to address quality-control concerns.

On March 15, 2000, Mr. Arzadon Jr. was notified by letter of the layoff which was characterized as temporary but with no return date. The record of employment he was given indicated he was temporarily laid off due to internal reorganization with the date of recall listed as “unknown.”

Mr. Arzadon Jr. wrote to the company on May 18, 2000, asserting that he had been terminated and demanded payment of outstanding termination pay. The company responded by confirming its intention to recall Mr. Arzadon Jr. at some point prior to the end of the 13-week temporary lay-off period. Mr. Arzadon Jr. asked the Ministry of Labour to investigate the situation. On June 16, 2000, Spectrum wrote to Mr. Arzadon Jr. to inform him that he was being recalled to work on Aug. 3, 2000. Because Mr. Arzadon Jr. had taken the position that he was terminated, he did not return to work.

The Employment Standards Act requires that when an employee is laid off, termination pay is owed to the employee. In Mr. Arzadon Jr.’s situation, he was entitled to six weeks’ notice in writing since his employment had been over six years but less than seven years. However, when the termination is temporary, no termination pay is owed. The regulations under the act define a “temporary layoff” as a layoff of not more than 13 weeks in any period of 20 consecutive weeks.

As a result of the investigation, an order to pay was issued against Spectrum for termination pay to Mr. Arzadon Jr. Spectrum brought an application to review this order to the Ontario Labour Relations Board. The issue before the board was whether Mr. Arzadon Jr. was indefinitely laid off and was entitled to termination pay when he was laid off.

In the opinion of the board, the original notice of layoff and record of employment, neither of which provided a specific date of recall, clearly indicate that Mr. Arzadon Jr. was indefinitely laid off on March 15, 2000. As a result of the board’s decision that the notice of lay-off was indefinite, the board held that Mr. Arzadon Jr. was entitled to termination pay.

For more information:

Spectrum Plastics Co. Ltd. v. Arzadon and Ministry of Labour, Ontario Labour Relations Board, File No. 1849-00-ES, May 31/01.

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