From our payroll expert, Alan McEwan:
It all depends on the scope of the refusal to return to work.
If the person is saying he or she needs some reasonable time before a return to work, that is one thing. If it’s a flat out refusal to return at all that’s another.
The other factor is that the person is rapidly approaching the 13-week threshold for converting a temporary lay-off into a termination. According to my calculations, this would be March 15, 2021. That’s the general rule. There are exceptions related to benefit continuance, union membership, etc.
But basically,
- If the person has flat out refused to return to work, that eliminates any employer obligation to pay notice under the employment standards. Any vacation pay or banked overtime, etc., would still have to be paid out.
- If the person just needs a reasonable amount of time to accommodate the return to work, the employee and employer could agree on a return date.
- Failing such an agreement, once March 15 has passed with no return to work, the person has effectively been terminated and notice pay, vacation pay, etc. is owing.
In any event, unless there is a collective agreement with return to work provisions, the employer is under no obligation to keep this person’s job for him or her.
