It may not seem like that long ago when many of us were working from home during the COVID-19 lockdowns. However, despite most provincially regulated workers returning to the office, there are still many who are still working remotely. According to the Ontario government, in the fourth quarter of 2022, 1.4 million Ontarians are working remotely on an exclusive basis.

With the recent news of companies starting to conduct mass layoffs, the Ontario government is concerned that remote workers are not adequately protected. The concern stems from the wording of the mass-termination provisions in the Employment Standards Act (ESA). Section 58 of the ESA states that employees are entitled to notice of a mass layoff when 50 or more employees "at the employer's establishment" are terminated within a four-week period. Regulations make it clear that the length of notice or pay in lieu of notice the employer must give when there is a mass termination is:

• Eight weeks of notice if 50-199 employees are getting terminated
• Twelve weeks of notice if 200-499 employees are getting terminated
• Sixteen weeks of notice if 500 or more employees are getting terminated

That length of notice is longer than the ESA minimums that employers must give employees when they are individually terminated. For example, if an employee who has worked for just over three years, they should receive a minimum notice of 3 weeks, which is much less than what they would receive as part of a mass termination.

Since the wording of section 58 specifically uses the phrase "at the employer's establishment" the concern is that employers might fire remote workers and claim that they are exempt from the mass termination rules as the remote workers were not working at their establishments but at home. If that is the case, an employer could fire 25 remote workers and 45 in-office workers within a four-week period and not meet the threshold of engaging in a mass termination.

The Ontario government's solution is to broaden the definition of an establishment to include an employee's remote workers. This, in theory, would allow more employees to claim the mass termination notice.

However, the Ontario Government is solving a problem that does not really exist. There is no evidence that employers are engaging in the tactics of firing remote workers to get around the mass layoff thresholds, as described above. Further, there is no case law where a judge has accepted such a strict interpretation of what it means to be "at the employer's establishment" when it comes to remote workers.

An employee can be entitled to more than their ESA minimums regardless of if they are terminated as part of a mass layoff. An employment lawyer can look at employees' contracts to determine how much notice that they are entitled to. With many termination clauses being invalid due to recent court decisions, many Ontarians are entitled to common law notice if they get terminated. In the right circumstances, common law can offer a notice period of over 24 months.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional corporation we can help ensure that employees get the termination pay that they are entitled to. We can also help employers update their contracts to limit the chance that their termination clause is found to be invalid. To get guidance from one of our employment lawyers, please contact us by calling us at 705-268-6492 or by emailing us at info@sdlawtimmins.com.