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Temporary laid off from March 17th, 2020.
Was in a full-time salaried position as General Manager of a restaurant in downtown Toronto.
Employed for 6 years.
Working Monday - Saturday, 5 shifts, majority day shifts 8am-5pm, 9am-5pm, very seldom worked an evening shift from 4pm-approx 12:30am.
Due to COVID-19 restaurant has changed hours from being open 7 days a week 11:30am to 11:00pm to being open 5 days a week, Wednesday through Sunday 12:00pm - 9:00pm.
If my employee only offers 75% of my salary and a completely different schedule, i.e. mostly nights, what are my legal rights, to refuse the position and ask for the pay + schedule I left or am I obligated to accept the position even if it is not the pay and schedule that I had when laid off?

Thank you for your question.

If you have not agreed in writing to temporary layoffs as a term of employment, the law holds that you are entitled to treat that as a dismissal. Note that this remains the case despite the recent amendments to the Employment Standards Act.

If your employer offers you the same job, with the same hours, for the same pay, then you will only be entitled to compensation up to that date, whether or not you accept the job. Here, however, your employer is offering you a different, less desirable position. There are therefore grounds to treat it as a continuation of the constructive dismissal.

I would recommend that you contact us at the number below for a consultation at your earliest opportunity. Kindly note that the limitation period to bring forth a claim is two years from the date of your notice of layoff.
The Lawyers at Samfiru Tumarkin LLP
Direct Tel (Toll Free): 1-855-821-5900     Email:     Web:
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