If a temporary layoff has exceeded the maximum period permitted by employment standards legislation, the appropriate termination date depends on the province. In some provinces, the termination is legally deemed to have occurred on the first day of the original temporary layoff, even though the employer only confirms the permanent layoff later.
For Ontario: Under section 56(5) of the Employment Standards Act, 2000, when a temporary layoff exceeds the permitted duration, the employee is deemed to have been terminated effective the first day of the original layoff, not the date the temporary layoff expired or the date the employer issues the termination letter. Generally, the temporary layoff limit is 13 weeks in a 20-week period, although certain circumstances permit longer layoffs.
For British Columbia: The same general principle applies. If the temporary layoff exceeds 13 weeks in a 20-week period, without an applicable exception or approved extension, termination is deemed to have occurred at the beginning of the layoff.
Alberta is different: employment generally ends on the 91st day of layoff within a 120-day period, subject to exceptions.
My recommendation: Date the permanent termination letter on the actual day you issue it, rather than backdating the letter. Explain that the temporary layoff has exceeded the statutory limit and identify the legally deemed termination date separately. Ensure any outstanding termination pay, applicable severance, vacation pay and other entitlements are calculated correctly and paid within the required deadlines. Also consider whether additional contractual or common-law notice obligations apply.
-HRInsider staff
