What if my work changes in a major way because of COVID-19?
What you can do about changes to your work depends on a few things such as when the changes took place and whether or not you agreed to them.
Before you start a job, your employer and you must agree on certain things. For example, the work you have to do and your salary. Usually there is a written agreement, or “employment contract”, but there doesn't have to be one. You might have a verbal agreement.
If your employer changes the terms of your agreement without your consent, you may be able to:
- say that your employer broke your agreement, and
- sue them for or .
This is called . It's like you've been fired.
A change in your working conditions must be major for it to be constructive dismissal. For example, if your employer does any of the following:
- lowers your pay a lot
- reduces your benefits a lot
- reduces the number of hours you work a lot or lays you off temporarily, unless your employment contract says that they can do this
- removes some of your main job responsibilities or moves you to a position that has much fewer responsibilities
If you've been constructively dismissed, your employer will usually owe you termination pay or pay in lieu of notice. Your employer owes this pay because constructive dismissal is like being fired without any notice.
The rules before COVID-19
There are usually 2 ways that you can make a claim for constructive dismissal. You can make a claim for:
- termination pay through the Ministry of Labour, or
- pay in lieu of notice through the courts
You can't do both. You have to choose one.
The Ministry of Labour enforces the (ESA). The ESA is the law that says what the rights and responsibilities of most employers and employees are in Ontario. It says that as an employee, you can usually get termination pay if you've been fired after working for at least 3 months and weren't fired for doing something really bad. The amount you can get depends only on how long you've worked for your employer. You can learn more about termination pay in the question: I’ve been fired. How much notice should I get?
Sometimes you can also claim through the Ministry of Labour, if you work for a large company.
The courts apply common law, which is law that is made by judges. If you go to court, you can ask for pay in lieu of notice instead of termination pay. The amount you can get depends on a number of different factors, including how long you've worked for your employer. You might also be able to ask for money for other things, such as damages if your employer broke human rights laws.
Usually, you can get more money if you go through the courts. But it's important to talk to a lawyer or paralegal first. Going to court is complicated and can cost a lot of time and money.
Changes to the ESA during COVID-19
On May 29, 2020, the government of Ontario changed the ESA so that during COVID-19, an employer can temporarily reduce or even eliminate an employee's hours or without this being constructive dismissal. The new rule only applies if the changes to an employee's hours and pay are because of COVID-19.
This means in most cases you cannot make a constructive dismissal claim through the Ministry of Labour for major changes to your hours or pay that happened because of COVID-19. There are only a few situations when you can still make a claim. See the section below.
This change will last until September 25, 2021. After that date, the pre-COVID-19 ESA rules about constructive dismissal will apply again.
When you can make a Ministry of Labour claim
You can still claim constructive dismissal through the Ministry of Labour during COVID-19 in these situations:
- The changes to your work are not because of COVID-19.
- Your employer makes changes because of COVID-19 that are not related to your hours or pay. For example, if your employer makes major changes to your work responsibilities.
- Your employer made the changes to your hours or pay because of COVID-19 before May 29, 2020, and you quit your job before that date because of the changes.
Court claims for constructive dismissal during COVID-19
You might still be able to sue your employer in court for constructive dismissal, even if the changes happened because of COVID-19. But the law isn't clear about this. So if you think you've been constructively dismissed, make sure to get legal help.