Michael Ford (post until Oct. 31/19)
Employment & Labour

Refusal to accept recall after illegal layoff failure to mitigate

By Barry B. Fisher

In this case, the judge assessed the notice period for a 50-year-old health and training specialist with 23.5 years service at 18 months.

The plaintiff had been given a notice of temporary layoff, which the court found was a breach of his employment contract. Some two weeks later the plaintiff’s lawyer sent a demand letter claiming wrongful dismissal. Within a few days, defence counsel says that the plaintiff would likely be recalled within a few days.

Surprisingly, plaintiff’s counsel then wrote to defence counsel and said that his client would not return to work as the relationship had broken down.

Less than two weeks later the plaintiff was recalled to his old position. The plaintiff refused the recall.

The court found that his refusal to accept the recall was unreasonable for the following reasons:

  1. Although the plaintiff testified that it would be embarrassing and humiliating to return to work, he gave no evidence to support this conclusion.
  2. The employer acted reasonably in the layoff.
  3. Even if, as the plaintiff believed, the recall was a legal tactic to avoid having pay severance, that alone does not make it reasonable to refuse the recall.
  4. The plaintiff had made the decision not to return to work even before he was recalled.
  5. In his 23 years with the defendant, the plaintiff admitted that the relationship was “harmonious and amicable.”
  6. The defendant had continued his benefits during the 3.5 weeks of layoff, thus they complied with the temporary layoff provisions of the Employment Standards Act.

The plaintiff was entitled to actual damages for the period of the layoff. This came to 3.5 weeks or $4,846.15.

My comments

I see this application of this case's principle often in my mediations. It is an extremely risky tactic for the plaintiff to refuse such a recall. It is also a risky defence tactic to make such an offer if your client actually dreads the idea of the plaintiff coming back to work.

It is important to note that this recall notice was not done as an offer to settle the case. Had it been framed that way, then the correspondence between counsel would have been “without prejudice” and thus not admissible.

The plaintiff could have accepted the recall and still preserved his right to claim and then sue for his lost wages between the time of the layoff and the time of the recall.

This threat will often convince the employer that he better off getting rid of the employee and negotiating an overall severance package rather than employing someone who is actively suing them. 

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