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From Alan McEwan, our payroll expert:
Basically, the employer should just state the date each employee is to return to work. If this date is less than the 13 week limit on a temporary lay-off and the employee does not return to work within a “reasonable time”, the employee loses any rights to notice under the Ontario employment standards.
As I read the Ontario legislation, this “reasonable time” could pass the 13 week limit and still exclude the employee from rights to notice. For example, if the 13 weeks would be reached on March 1 and the employer recalls an employee for February 21, a “reasonable” time for the employee to return to work (very much depends on the circumstances) could lets say be 2 weeks, which would be past the March 1 expiry of the 13 week temporary lay-off. However, if the employee does not return to work within this “reasonable time”, the employee would still not be eligible for notice under the Ontario employment standards.
The employer should note that none of this affects the employee’s right to claim constructive dismissal on the lay-off itself, if the employment contract does not provide for lay-offs. Also, none of this deals with any employee rights under a collective agreement or in the courts under the common law.
The employer might want to consider whether the letter giving the recall date should warn of the possible consequences of not returning or of trying to define what a “reasonable time” might be. For example, if the letter stated that employees had a fixed date by which to notify the employer of any circumstances which would prevent them from returning to work, that might help to limit and claims for more than “reasonable time” to return.