I Was Laid Off and They Hired Someone Else

Layoffs are generally intended to be temporary in nature, with the employer intending to recall employees once the circumstances leading to the layoffs have been resolved. But what do you do if you have been laid off and your employer then hires someone new, potentially leading to questions about the legality of the employee’s termination?

What Is a Temporary Layoff and Severance Pay?

Employee layoffs happen when an employer halts an employee’s work, or significantly reduces the employee’s hours, without ending the employment relationship. Ontario’s Employment Standards Act, 2000 allows employers to layoff employees as long as they do not exceed the following:

• 13 weeks within a 20-week period; or
• 35 weeks within a 52-week period.

Temporary layoffs can occur for various reasons, including but not limited to the employer’s economic hardship, the seasonal nature of the employee’s work, or restructuring by the employer. Following a temporary layoff, an employee should generally be recalled to the same position and under the same terms, they enjoyed prior to the layoff.

Can An Employer Hire Someone To Replace A Laid Off Employee?

Generally speaking, an employer cannot lay off an employee only to then immediately hire employees simultaneously to fill the laid-off employee’s position. Temporary layoffs are based on the mutual understanding that the employer does not wish to end your employment relationship, but rather that circumstances beyond their control have forced the employer to have no choice but to lay off employees. If you become a former employee due to such actions, it is crucial to understand your legal rights.

In some cases, employers may choose to eliminate positions of lower-performing employees or those with performance or behaviour issues. However, this should not be used as a process to get rid of a troubled employee, and caution should be exercised to avoid immediately filling the same position with another person.

This fundamental principle is violated if an employee is laid off, only to then find out their employer had turned around and immediately hired someone to fill the same job. For instance, an employer may no longer need an operations manager but may need to hire more sales or service professionals. In such cases, you may be entitled to a severance package. Should this happen to you, it would be wise to seek legal advice as soon as possible in order to determine what your rights and entitlements are moving forward. Consulting with a lawyer can help you determine if you are eligible for severance pay.

Conclusion

Temporary layoffs generally occur when an employer is forced by circumstances beyond their control to significantly reduce, or altogether stop, an employee’s work. Employers must also consider the impact on remaining team members, who may experience increased workloads and job insecurity.  However, statutory guidelines prohibit an employer from laying off an employee indefinitely. Employers must also consider the impact on remaining employees, who may experience increased workloads and job insecurity. An employer also cannot lay off an employee only to immediately turn around and hire a new employee to take over the laid-off employee’s duties.

Contact Achkar Law

If you’re facing job layoff  challenges, you’re not alone. Our dedicated team of employment law professionals is here to provide you with the support, guidance, and representation you need to navigate through complex legal matters with confidence.

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Further Reading

When Does A Temporary Layoff Become A Termination?

Temporary Layoff Considered Constructive Dismissal At Common Law

Back To Work: Recalling Employees From Temporary Layoffs