The Risks of Recalling Some But Not All Employees in Ontario

With more federal and Ontario businesses re-opening to the public, employers are recalling employees back to work, in many cases recalling some but not all employees. While it is quicker and perhaps easier for employers to recall all laid off employees at once, employers can also stagger the recall and bring back certain employees before others to make the transition smoother.

There are, however, additional risks and considerations employers should be aware of in the event they decide to only recall some employees ahead of others, whatever the reasoning.

Employment Agreement, Collective Agreement, Workplace Policies

There are various ways an employer can recall their employees following a layoff. Employment agreements, collective agreements, and workplace policies should always be reviewed prior to any decisions being taken.

These documents may have details pertaining to the manner of recalling, as well as any limitations that the employer should be aware of prior to deciding. For example, a collective agreement may specify that when staggering a recall, the order of employees brought back to work must be based on seniority.

Failure to adhere to a clause on the manner by which employees return to work found in an employment or collective agreement can create liability for the employer, either through a constructive dismissal claim or a grievance, both of which can be costly. When it comes to workplace policies separate from an employment or collective agreement, similar risks could apply if those policies are considered legally enforceable.

In the event of a staggered recall-to-work initiative, employers should be sure to remember recall deadlines found under the Employment Standards Act, 2000 in Ontario and the Canada Labour Code for federal employees. Failure to return all laid off employees to work in time could result in those employees not recalled to be considered dismissed and owed termination entitlements.

Potential Human Rights Concerns

In addition to the employment agreement and policies, employers need to be aware of human rights obligations when bringing employees back to work.

Employers must not discriminate against employees on the basis of the protected grounds found in the Ontario Human Rights Code when provincially regulated or Canadian Human Rights Act when federally regulated.

If an application at the Human Rights Tribunal of Ontario or a complaint to the Canadian Human Rights Commission is brought due to alleged discrimination, the employer in question could potentially be liable for significant damages.

Employers can implement strict guidelines, made publicly available to employees, explaining which positions are prioritized in the event of a recall. An employer should use an objective process rather than a subjective measure for choosing which employees to recall first. Less objective measures can inadvertently discriminate based on a protected ground.

Most importantly, employers should ensure any partial recall of employees is strictly related to business needs. Considering the risks in staggering the recall of employees to work, employers should consult with an employment lawyer before issuing any recall notices to employees.

Contact Us

If you are an employer looking to recall employees, or an employee who wants to know about your rights regarding a recall to work, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.

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Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email [email protected].