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?

What Is a Temporary Layoff?

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 different 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.

Layoffs: What If An Employer Hires A New Employee To Fill My Previous role?

Generally speaking, an employer cannot lay off an employee only to then immediately hire a new employee 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.

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 their position. If this occurs, then the employment relationship has in fact been severed, and the employee will have been wrongfully dismissed. 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.

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. This situation became a lot more common due to the effects of the COVID-19 pandemic. However, statutory guidelines prohibit an employer from laying off an employee indefinitely. 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.

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

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