Workers across various sectors of federally-regulated workplaces are being impacted by COVID-19, including thousands of airline workers who have already been laid off. We have outlined below answers to questions that federally-regulated workers might be asking about job loss and their employment rights.
How do I know if I am a federally-regulated worker?
Most employment is regulated by the provinces rather than the federal government. However, if you work in the following fields, you are most likely a federally-regulated worker governed by the Canada Labour Code:
- Marine transportation
- Air transportation, including airports
- Railway and road transportation that involves crossing provincial or international borders
- Telephone and cable systems
- Radio and television broadcasting
- Businesses dealing with the protection of fisheries as a natural resource
- Many First Nation activities
- Most federal Crown corporations
- Private businesses necessary to the operation of a federal act
If none of the above describes your workplace, you are likely a provincially-regulated employee. If so, you can find information about your rights in our Q&A for Ontario Workers.
What if I am unionized? Does the Canada Labour Code still apply?
If you are unionized, you should look to your collective agreement for your employment rights. However, if the collective agreement is silent on an issue, or if the standards set out in the Canada Labour Code are better than what is provided in the collective agreement, then the Canada Labour Code standards may apply.
Does my employer have to pay me severance pay if I am laid off because of COVID-19?
Not necessarily. If the employer puts you on a temporary layoff, then it does not need to provide notice or severance pay. It can place you on a temporary layoff in the following circumstances:
- Where the length of the layoff is three months or less
- Where the employer has given you notice which includes a recall date, and you are actually recalled by that date, and the length of the layoff is six months or less
- Where you continue to receive compensation and/or benefits while on lay off, or
- Where you are subject to a collective agreement that includes recall rights or a mandatory layoff provision, and the length of the lay-off is 12 months or less.
At the time of the layoff, the employer must tell you how long the layoff will be. If the layoff runs for a longer period of time, and you have not been called back to work, then the employer must give you notice and severance pay.
What if my employer lays off a large group of employees all at once?
As a general rule, employers in the federal jurisdiction have more responsibilities when they layoff 50 or more employees within a one-month period. However, the Minister of Labour can choose to waive these extra group lay off requirements in certain circumstances. It is also possible that employers might be able to successfully argue that the group layoff provisions should not apply during the current crisis.
Am I entitled to notice or severance pay from my employer if I’m laid off?
If you are laid off or otherwise terminated by your employer, you may be entitled to notice and severance pay, unless you are on a temporary layoff as described above.
a) Notice or wages in lieu
If your job loss follows at least 3 months of consecutive employment with the employer, you are entitled to two weeks’ notice, or two weeks wages at your regular rate of pay instead of notice.
b) Severance pay
If you have completed 12 consecutive months of employment with the employer, you are entitled to severance pay if you have been laid off or terminated without “just cause.”
The amount of severance pay is calculated according to the following formula:
- Five days wages at your regular rate of pay, PLUS
- Two days wages at your regular rate of pay for each year of employment completed with the employer.
What can I do if I’m terminated by my employer without just cause?
Unlike non-unionized, provincially-regulated employees, workers at federally-regulated workplaces cannot be dismissed without just cause. If you are dismissed by your employer at a federally-regulated workplace, you may be reinstated to your position if the employer did not have just cause.
If you are dismissed by your employer, you may challenge your dismissal by lodging a complaint with an inspector within 90 days of your job loss, provided you have worked for the employer for at least 12 consecutive months.
That being said, an employee’s unjust dismissal complaint will fail if their employer dismissed them because of a genuine lack of work or because a “function” at the workplace has been discontinued. So, for example, if you are laid off because COVID-19 has resulted in less work at your workplace, the layoff will likely be found to be permissible. However, if the layoff is carried out in a discriminatory way, or if it is otherwise not a legitimate layoff, a complaint may succeed.
Finally, it should be noted that managers and unionized employees may not make unjust dismissal complaints under the Canada Labour Code. Unionized employees must grieve their job loss under their collective agreement.
Can I get common law notice if I’m terminated without just cause?
In the federal jurisdiction, reinstatement to your position is the most common remedy for an unjust dismissal. However, if for some reason reinstatement is not available, then you may be able to get common law notice instead of reinstatement if you have been dismissed without cause.