2920-00-ES Norwood Canada Ltd., Applicant v. David Greenside and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 63001779

BEFORE: Caroline Rowan, Vice‑Chair.

APPEARANCES: Elizabeth Traynor, Karen Northgrave and Shauna Hawkeye for the applicant; Karima Chatur appearing for the Ministry of Labour; no one appearing for the responding party employee.

DECISION OF THE BOARD; November 6, 2001

1. This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c. E-14, as amended (the “ESA”) for review of an Order to Pay in the gross amount of $6,652.80 (inclusive of an administration fee of $604.80) filed by the applicant, Norwood Canada Ltd. (the “Company”). The Order to Pay in issue relates to termination pay plus vacation pay thereon found to be owing to the claimant, Mr. David Greenside.

2. This application was scheduled for hearing before the Board at 9:30 a.m. on Wednesday, October 17, 2001. At that time, neither the responding party employee, Mr. David Greenside, nor a representative of Mr. Greenside, was in attendance at the hearing. After waiting in excess of the normal thirty minutes, the Board began the hearing in Mr. Greenside’s absence.

3. The Employment Standards Officer determined that Mr. Greenside was entitled to termination pay and vacation pay thereon having regard to his finding that Mr. Greenside was given notice of indefinite lay-off effective March 6, 2000. The officer noted that under section 8(3) of Ontario Regulation 327 under the ESA (“Regulation 327”) “notice of indefinite lay-off shall be deemed to be notice of termination of employment.”

4. The Company argues that the Order to Pay should be rescinded in its entirety on the basis that Mr. Greenside was not, in fact, given “notice of indefinite lay off” effective March 6, 2000. The Company submits that Mr. Greenside was instead “temporarily laid off” in March 2000 and that in these circumstances he is not entitled to termination pay under section 57 of the ESA.

5. In the alternative, the Company argues that Mr. Greenside is estopped from claiming his statutory entitlement in the circumstances of the present case, since allowing him to do so would result in an unjust enrichment. In the further alternative, the Company submits that Mr. Greenside, in fact, received his entitlement to notice of termination under section 57 of the ESA when he worked in the period following his recall to work effective June 26, 2000.

6. The Company did not, however, dispute the officer’s assessment of the quantum of termination pay and vacation pay thereon found to be owing to Mr. Greenside in the event the Board finds that Mr. Greenside is, in fact, entitled to termination pay and vacation pay thereon as a consequence of his lay-off effective March 6, 2000. It was also common ground that no termination pay or vacation pay thereon is owing to Mr. Greenside under the terms of the ESA in the event that the Board finds that Mr. Greenside was, in fact, “temporarily laid off” effective March 6, 2000 as contended by the Company.

FACTS

7. The Board heard evidence from two representatives of the Company, Ms. Karen Northgrave, a human resource manager for the Company, and Ms. Shaunna Hawkeye, the Company’s director of operations. The Board found both to be credible and reliable witnesses. Their evidence was, in any event, not disputed. The facts relevant to this application may be briefly summarized as follows.

8. The Company employed Mr. Greenside in its manufacturing operation. That operation involves manufacturing various types of calendars and printing products. The bulk of that manufacturing work relates to the production of calendars and is cyclical in nature. As a consequence, the majority of the Company’s production typically takes place from August to November of each year.

9. Because of the cyclical nature of the work, the Company generally hires temporary help during busy periods and also has lay offs of some “core” employees during slow periods. The Company points out that Mr. Greenside has been laid off during slow periods in previous years. The Company introduced the following record of Mr. Greenside’s absences during the period from September 14, 1981 to December 31, 1999:

DAVE GREENSIDE – WORK HISTORY

Sept. 14, 1981 – Dec 31, 1999

1^st Day of Work Last Day of Work Return Date Reason

Sept 14, 1981 Feb 9, 1989 Feb 20/89 Lay off - Shortage of work

Feb 20, 1989 March 3, 1989 Mar 16/89 Lay off – Shortage of work

Mar 16, 1989 Feb. 16, 1990 Feb 26/90 Lay off – Shortage of work

Feb 26, 1990 Jan 7, 1993 May 3/93 Lay off – Shortage of work

May 3, 1993 Jan 5, 1994 Feb 28, 1994 Medical Leave

Feb 28, 1994 Feb 1, 1996 Feb 21/96 Vacation – plus addn’l

leave of absence

Feb. 21, 1996 Jan 30. 1997 Mar 5/97 Vacation – plus addn’l

leave of absence

Mar 5, 1997 Jan 29, 1998 Mar 31/98 Vacation – plus addn’l

leave of absence

Mar 31, 1998 Dec 31, 1998 Feb 22/98 Vacation – plus addn’l

leave of absence

Feb 22, 1999 May 31, 1999 June 14/99 Medical Leave – WCB

Denied 21413535-L

June 14, 1999 Dec 31, 1999 Mar 6/00 Vacation – plus addn’l

Leave of absence

Mar 6/00 June 26/00 Lay-off - Shortage of work

June 26/00 August 14/00 Retirement

10. Ms. Northgrave explained that the notations “Vacation – plus addn’l leave of absence” on Mr. Greenside’s work history in 1996 to 1999 represent time off taken by Mr. Greenside at his request so that he and his wife could spend some time away from the workplace in London to go to Florida. Mr. Greenside’s benefit coverage was maintained throughout these periods. The Company had, in each case, granted his request for a leave of absence in addition to vacation during the periods noted above. Each leave of absence took place during one of the Company’s slow periods, during which time other “core” employees had been laid off.

11. Mr. Greenside had again taken “vacation plus additional leave” at his request from December 31, 1999 to March 6, 2000, which was immediately prior to the lay-off in issue. Shortly prior to his departure on vacation and leave in December 1999, Ms Hawkeye met with Mr. Greenside to discuss his performance appraisal. She noted that he had received a very positive appraisal at that time. During their discussion, Mr. Greenside indicated to her that if there were any upcoming lay offs, he would be interested in being one of the employees laid off. Ms. Hawkeye understood him to mean that he was interested in a lay-off in addition to the time he had already arranged to be off work on vacation and on leave. At that time, Ms. Hawkeye responded that she did not know what the Company’s requirements would be.

12. Subsequently, in early 2000, the Company lost a big account with a customer. Ms. Hawkeye testified that that loss of business factored into the Company’s decision to lay-off Mr. Greenside effective March 6, 2000. She wrote Mr. Greenside the following letter advising him of the lay off, which was sent to his address by regular mail:

March 1, 2000

David Greenside

#1 – 515 Proudfoot Lane

LONDON, On

N6H 5N9

Dear David:

This letter will confirm our conversation regarding a temporary lay-off at King Craft as “Imprint Press Operator” in our Press department effective Monday, March 6, 2000. This is due to the work slowing down in the imprint area.

Your benefits such as Life Insurance, A.D.& D., Medical & Dental will continue throughout this period of time. You will need to provide either a postdated cheque for your medical/dental/vgi or make other arrangements. We will include all of your vacation pay accrual on your pay of March 10, 2000.

Dave, I look forward to you returning to your regular duties, however at this time it is unknown as to when this will occur.

Dave, I know you will understand this decision and I look forward to your quick return.

Yours truly,

Shaunna Hawkeye

Director of Manufacturing

c.c. Karen Northgrave

Would you please confirm your receipt of this letter by your signature.

________________Date _______________

13. Ms. Hawkeye noted that the reference in the first sentence of her letter to their “conversation regarding a temporary lay-off at King Craft” could have referred to their conversation during the course of Mr. Greenside’s performance appraisal, at which time Mr. Greenside requested that he be one of the employees laid off.

14. Ms. Northgrave also indicated that the handwritten notations on the letter submitted into evidence, which read “re phone call on Mar 3/00 as per Dave G. take March & April /00 benefit deductions”, were written by her following a telephone conversation with Mr. Greenside on or about March 3, 2000. At that time, they discussed how Mr. Greenside would compensate the Company for his portion of the benefits that were continued during his lay-off.

15. Ms. Hawkeye also spoke to Mr. Greenside on March 2, 2000 at one of the Company’s warehouses where he had attended that day on a personal errand. Ms Hawkeye testified that Mr. Greenside had asked her how long the lay-off would be, and that she could not give him any type of answer as she did not know at that time.

16. Ms. Hawkeye believed, however, that Mr. Greenside understood from their discussions that he would be recalled back to work. She could not, however, confirm that he understood from those discussions that he would be recalled back to work sometime prior to the expiry of the thirty-five (35) week temporary lay-off period contemplated under the ESA. The Record of Employment issued to Mr. Greenside on March 10, 2000 also indicates that his expected date of recall is “Unknown”.

17. The next communication the Company received from Mr. Greenside was a letter from him dated June 6, 2000. That letter indicates that Mr. Greenside had spoken to the Ministry of Labour on June 5, 2000 and was advised of his right to file a claim for eight weeks’ termination pay plus vacation pay thereon. Mr. Austin, the Company’s Vice-President & General Manager, responded by letter dated June 8, 2000. In his response, Mr. Austin stated, among other things, that the Company’s intention was and is to lay-off Mr. Greenside temporarily. Mr. Austin also indicated that “[w]e will have continuing work for you and can give you a specific recall date as soon as Shaunna Hawkeye returns from her business trip abroad on June 12, 2000.”

18. Thereafter, Ms. Hawkeye wrote to Mr. Greenside on June 12, 2000 and asked him to report for work on July 4, 2000. That date was later revised to an earlier date and Mr. Greenside, in fact, returned to work on June 26, 2000. On June 28, 2000, Mr. Greenside provided the following written notice of his intended retirement effective August 11, 2000:

June 28, 2000

To Shaunna/Don,

This letter serves as notice of my decision to retire effective Friday, Aug. 11, 2000. As previously discussed it was my intention to continue to work seasonally as needed during peak times. However, due to recent events I find I cannot do so.

Yours truly,

David Greenside

19. Mr. Greenside retired on August 11, 2000 as anticipated.

DECISION

(i) Was the Claimant given Notice of Temporary or Indefinite Lay-off?

20. The first issue to be determined in this case is whether or not Mr. Greenside was “temporarily laid off” within the meaning of the exception to the obligation to provide notice of termination contained in subsection 57(10)(b) of the ESA. As previously noted, the Employment Standards Officer found that Mr. Greenside had not been temporarily laid off but rather had been given notice of indefinite lay off, since he was not provided with a definite date of recall. The relevant portions of section 57 of the ESA read as follows:

21. (1) No employer shall terminate the employment of an employee who has been employed for three months or more unless the employer gives,

(h) eight weeks notice in writing to the employee if his or her period of employment is eight years or more,

and such notice has expired.

(10) Subsections (1) and (2) do not apply to,

(b) an employee who is temporarily laid off, as defined in the regulations;

(14) Where the employment of an employee is terminated contrary to this section,

(a) the employer shall pay termination pay in an amount equal to the wages that the employee would have been entitled to receive at his or her regular rate for a regular non-overtime work week for the period of notice prescribed by subsection (1) or (2), and any wages to which the employee is entitled;

(17) If an employee is temporarily laid off, as defined in the regulations, and the lay-off equals or exceeds thirty-five weeks in any period of fifty-two consecutive weeks, the employee shall be deemed no longer to be temporarily laid off and, if the employee has not been given notice of termination in accordance with this section, the employee is entitled to termination pay.

21. The relevant provisions of Regulation 327 read as follows:

22. For the purposes of section 57 of the Act,

"temporary lay-off" means,

(a) a lay-off of not more than thirteen weeks in any period of twenty consecutive weeks,

(b) a lay-off of more than thirteen weeks where,

(ii) the employer continues to make payments for the benefit of the person laid off under the provisions of a bone fide retirement or pension plan or under a bone fide group or employee insurance plan,

"termination of employment" includes a lay-off of a person for a period longer than a temporary lay-off;

"week of lay-off" means a week in which a person receives less than one-half of the amount the person would earn at his or her regular rate in a normal non-overtime work week, but shall not mean a week in which a person,

(a) was not able to work or not available for work,

(b) was subject to disciplinary suspension, or

8. …

(3) Notice of indefinite lay-off shall be deemed to be notice of termination of employment.

(4) Where a person who has been laid off is no longer temporarily laid off as defined in this Regulation, the employment of that person shall be deemed to have been terminated upon the first day of the lay-off and the employer shall pay to that person an amount calculated in accordance with subsection 57 (14) of the Act, as though the employment of the person had been terminated forthwith without notice.

22. In Stolze v. Addario, 1997 CanLII 764 (ON CA), 36 O.R. (3d) 323, the Ontario Court of Appeal had occasion to consider whether or not an employee was temporarily or indefinitely laid-off pursuant to the terms of the ESA. In that case, the Court of Appeal found that the intention of the employer was irrelevant to a determination of this issue. Instead, the Court of Appeal had regard to the communication between the employer and the employee at the time of lay-off to determine whether an objective assessment of that communication suggested that the lay-off was temporary or indefinite.

23. In the circumstances of that case, the Court of Appeal concluded that the employee in question had been indefinitely laid off notwithstanding that the notice of lay-off provided by the employer specifically indicated that the lay-off was temporary and that the employee’s benefits would continue. In doing so, the Court of Appeal had regard to the entire communication, which contemplated that the employee may be recalled within the period of a temporary layoff, or, alternatively, may not be recalled prior to that time. In these circumstances, the Court of Appeal found that an objective assessment of the communication as a whole was that the employee had, in fact, been given notice of indefinite layoff.

24. Adjudicators under the ESA have also considered the distinction between a temporary and an indefinite layoff. In Old Ontario House (1982) Ltd., (Decision No. ES 04/93, January 15, 1993, T. Wacyk), the claimant had initially been told at the time of lay-off that he would be recalled within three or four weeks. The claimant was subsequently told that his employer had, in fact, “no idea” when he would be recalled. Ultimately, the claimant was recalled in the thirteenth week of layoff. In those circumstances, the Adjudicator found that the situation changed from that of a “temporary layoff” to that of an “indefinite layoff” at the time the employer communicated to the employee that it did not know when the employee could anticipate returning to work. In doing so, the Adjudicator adopted the following principle articulated in Rogers Dairy Limited, (Decision No. ESC 561/78, December 14, 1978, Davis):

Reading the Act as a whole, it is clear that the mischief which it is sought to cure is the unexpected loss of employment without reasonable opportunity afforded the employee to seek out alternative employment. The employee is therefore entitled to know at the time he is given notice of the interruption in his employment, whether it is a temporary interruption of relatively short duration … or is of longer period in which case it will be viewed as a “termination of employment”. (p.4)

25. In concluding that an indefinite lay-off was created when the employer advised the employee that it did not know when the employee would be recalled, the Adjudicator in Old Ontario House, cited above, then reasoned as follows:

… To enable employers to tell employees that they have no idea as to when they may be called back until the 13 week deadline brings some closure to the matter denies the purpose of subsection 9(3) [now 8(3)]. It allows employers to keep employees hanging, as happened in this instance, without the information they require in order to make the decisions necessary to get on with their lives, and without the financial buffer of termination pay to deal with the sudden loss of income.

The Employment Standards Act does not require that employees who are being laid off be given any notice of the lay-off. Laid-off employees may, therefore, find themselves quite suddenly and through no fault of their own, in an extremely precarious financial situation. Employees faced with a lay-off of a definite time can decide if they are in a position to give priority to reemployment with the same employer or whether they will hold themselves out as looking for full time employment, which would no doubt make them more attractive on the job market.

Interpreting subsection 9(3) as triggering entitlement to termination benefits if employers cannot advise employees when they will be recalled, requires employers to make their best efforts to act responsibly and honestly with regard to the information that they give employees about the length of their lay-off. This enables the laid off employees to make informed decisions with regard to how they will deal with their situation. If the employer cannot indicate when they can anticipate a recall, then employees at least have the cushion of their termination pay to assist them with their unemployment.

Most importantly, interpreting subsection 9(3) to allow for an indefinite lay-off without it being an “indefinite lay-off” for the purpose of that subsection, in my view, renders that entire section meaningless. If telling an employee that the employer has “no idea” as to when they will be recalled is not an indefinite lay-off, it is hard to contemplate what would be, other than an obvious termination which makes the section redundant.

For the above reasons I find that subsection 9(3) applies to trigger entitlement to rights flowing from termination of employment in circumstances where an employer does not give an employee an indication of when he or she can expect to be recalled.

As a result, I find that the Applicant’s situation changed from that of a “temporary lay-off” to an “indefinite lay-off” at the time Mr. Cofell communicated to the Applicant that he did not know when the Applicant could anticipate returning to work. That he was subsequently recalled does not change this fact.

26. The Board agrees with, and adopts, the reasoning in that case. The ESA provides an exception to the requirement to provide notice of termination to employees who are “temporarily laid off” within the meaning of the ESA and regulations, but employees who are given “notice of indefinite layoff”, are deemed to have been given notice of termination of employment. Where an employer fails to provide the employee with a definite statement that the lay-off will end in the period of temporary lay-off prescribed under the ESA and regulations thereunder (which in the present case is a thirty-five week period), the employee is entitled to treat the notice of lay-off as notice of termination, to make decisions thereupon and to receive his/her statutory entitlement.

27. The Board notes parenthetically that it does not find the decisions in E.S. Fox Ltd. v. Hagt, (October 20, 1997) ESC 3833-96-ES (Albertyn) and in Phantom Industries Inc. (Re), (October 16, 1997) ESC 97-87 (Novick) cited by the parties to be of much assistance in determining this issue. In E. S. Fox Ltd. v. Hagt, cited above, the adjudicator was considering different issues, none of which involved the question of whether or not the claimant was “temporarily” laid off within the meaning of section 57 of the Act or was given “notice of indefinite lay off” within the meaning of Regulation 327. The issues under consideration in that case turned on an interpretation of section 58 of the Act, not section 57 of the Act and Regulation 327. In fact, in the course of that decision, the Adjudicator specifically rejected the argument of one of the parties that Regulation 327 is relevant to the determinations in issue and noted that Regulation 327 has no bearing on section 58 claims.

28. While the decision in Phantom Industries Inc. (Re), cited above, did deal with the issue of “temporary” rather than “indefinite” lay-off under consideration in the present case, that decision predates the Court of Appeal decision in Stolze v. Addario, cited above. In Phantom Industries Inc. (Re), cited above, the Adjudicator determined that the lay-off was “temporary” having regard to her conclusion that the evidence was more consistent with an intention to temporarily lay-off the claimant. As previously indicated, the Court of Appeal decision in Stolze v. Addario, cited above, subsequently determined that the employer’s intention is not relevant to the determination in issue and that, as such, a consideration of intention is an error in law. The Board therefore declines to follow the reasoning in Phantom Industries Inc. (Re), cited above.

29. In the present case, the Company takes issue with the Ministry’s current policy, which is apparently based on the Court of Appeal decision in Stolze v. Addario, cited above. That policy requires that a notice of lay-off clearly provide a recall date in order to be treated as a notice of temporary lay-off. The Company points out that neither the Court of Appeal decision in Stolze v. Addario, cited above, nor the ESA and regulations made thereunder, require a specific date of recall and as such, the Company argues that the Ministry’s policy represents an incorrect interpretation of the law. The Company also points out that subsection 56(4) of the Employment Standards Act, 2000 S.O. 2000, c. 41 as amended, which was proclaimed in force on September 4, 2001, reads as follows:

30. (4) Temporary lay-off not termination. – An employer who lays an employee off without specifying a recall date shall not be considered to terminate the employment of the employee, unless the period of lay-off exceeds that of a temporary lay-off.

Although the Company acknowledges that that provision does not apply to the present claim filed prior the effective date of the amendment in issue, the Company suggests that this amendment reflects a legislative recognition that the Ministry’s current policy is untenable.

30. With respect to this submission, the Board agrees that the Court of Appeal decision in Stolze v. Addario, cited above, does not explicitly interpret the provisions of the ESA and regulations thereunder as requiring a clear date of recall to be set out in a notice of lay-off in order to be construed as a notice of “temporary” lay-off only. As previously noted, the Court of Appeal simply determined that an objective assessment of the communication from the employer to the employee is required and that the employer’s intentions are not relevant to a determination of whether or not a notice of lay-off should be assessed as providing for a “temporary” or “indefinite” lay-off.

31. It remains true, however, that an objective assessment of a written notice of lay-off that clearly provides a recall date within the applicable period of “temporary lay-off” prescribed under Regulation 327 and the ESA would, in most (though perhaps not all) cases, lead to a conclusion that the lay-off is “temporary” only. There may, however, also be circumstances in which an objective assessment of an employer’s communication, which does not spell out a specific date of recall, nonetheless leads to a finding that the lay-off in question is simply “temporary”.

32. For example, in Oakridge Auto Service Ltd., (Unreported decision, Board File No 1155-00-ES, March 7, 2001), the Board found that that the lay-off in issue was “temporary” rather than “indefinite” nothwithstanding the fact that the notice of lay-off provided by the employer to the employee did not clearly provide a recall date. Although the employer in that case had not communicated a specific date of recall, it had indicated to the claimant at the time of lay-off that the lay-off would be “for a week or two”. In these circumstances, the Board found that an objective assessment of the communication by the employer to the employee led to a conclusion that the employee had been “temporarily laid off”.

33. A determination of whether or not an employee has been “temporarily laid off” within the meaning of subsection 57(10)(b) of the ESA is therefore a question of fact in each case, which requires an objective assessment of the communication by the employer to the employee. While that assessment includes a consideration of whether or not a specific date of recall within the period of temporary lay-off has been provided by the employer to the employee at the time of lay-off, the absence of a specific date of recall is not necessarily dispositive of the issue.

34. In the present case, the Company provided the claimant with written notice of lay-off on or about March 1, 2000 effective March 6, 2000. That notice, like the one considered by the Court in Stolze v. Addario, cited above, indicated that the lay-off was temporary and that the claimant’s benefits would continue, but did not provide the claimant with any indication of when he could expect to be recalled. On the contrary, the notice of lay-off in the present case stated explicitly that “...at this time it is unknown as to when [the claimant’s return to regular duties] will occur”.

35. The record of employment issued to Mr. Greenside shortly thereafter also stated that his date of recall is “unknown”. In addition, Ms. Hawkeye’s evidence was that when she spoke to Mr. Greenside at the workplace on or about March 2, 2000, he wanted to know when he could expect to be recalled, but she was unable to give him any type of answer as she did not know at that time. While Ms. Hawkeye believes that her discussions with Mr. Greenside made clear to him that he would be recalled to work, she could not confirm that he understood from these discussions that he would be recalled in the thirty-five (35) week period contemplated under the ESA or that the Company had ever provided Mr. Greenside with a definite statement that he would be recalled sometime in that period.

36. In the Board’s view, an employee is entitled to know more than that there is a reasonable likelihood that he or she will be recalled at some undefined date in the future or that it is probable based on a Company’s experience in prior years that he or she will be recalled to work. In all of the circumstances, the Board finds that the claimant was given “notice of indefinite lay off” in March 2000 within the meaning of the ESA and regulations thereunder. In accordance with subsection 8(3) of Regulation 327, that notice of indefinite lay-off is deemed to be notice of termination of employment.

(ii) Is the Claimant Estopped from claiming his Statutory Entitlement?

37. As previously indicated, the Company argues, in the alternative, that the claimant in the present case is estopped from claiming any entitlement to notice of termination or pay in lieu thereof as a consequence of the termination of his employment on March 6, 2000. The Company notes that the claimant contacted the Ministry of Labour on June 5, 2000 and was advised of his right to file a claim. He so advised the Company on or about June 8, 2000 and did not file the present claim until June 14, 2000, which the Company points out was after he had been notified on June 12, 2000 that he was being recalled to work. In these circumstances, the Company argues that to allow his claim represents a clear case of unjust enrichment and that the claimant is therefore estopped from claiming entitlement to his statutory right to notice of termination or pay in lieu thereof.

38. With respect to this alternative submission, the Board firstly notes that the Company did not provide any legal authority for the proposition that a claimant can in certain circumstances be estopped from pursuing his or her statutory entitlement under the ESA. While the Board has considerable doubt about such a proposition given that parties cannot contract out of or waive an employment standard (Section 3 of the ESA), the Board is, in any event, not persuaded that there is any inequity in allowing the claimant to pursue his statutory entitlement in the circumstances of the present case.

39. The Company’s suggestion that the claimant cannot pursue such a claim in circumstances where he was, in fact, recalled by the Company within the applicable period of temporary lay-off (which in the present case is a thirty-five week period) was rejected by the Adjudicator in Old Ontario House (1982) Ltd., cited above. In that case, the Adjudicator noted (in the passage cited above) that the fact that the employer subsequently recalled the claimant does not change the fact that the claimant’s employment was deemed to have been terminated at an earlier date when the employer advised the claimant that he was being laid off and did not know when the claimant could anticipate returning to work. As the Referee noted in John M. Roberts Auto Body Ltd, Oct. 2, 1980, (Davis) E.S.C. 879, actions taken by an employer subsequent to the date of lay-off to redefine the employee’s employment status are irrelevant to his/her claim for termination pay.

40. The Board also notes that the Company only advised Mr. Greenside that he was being recalled to work after it received notice from him that he had contacted the Ministry of Labour on June 5, 2000 and was informed of his right to file a claim for termination pay. There was no suggestion on the evidence that the Company recalled him on June 12, 2000 in the normal course. The recall appears to have been prompted by the claimant’s notice to the Company that he was treating his lay-off as a termination. However, even if the recall on June 12, 2000 was not prompted by the impending claim, as the Adjudicator/Referee decisions cited above indicate, the Company’s subsequent actions do not alter the fact that a termination occurred in March 2000 at the time the claimant was notified of his lay-off and was not given any indication as to when he could expect to return to work.

41. At the time of lay-off, the Company had in effect told him that it had no idea when he could expect to be recalled. The claimant was subsequently without income for a period of approximately four months from March 2000 to June 2000 and did not know until on or shortly after June 12, 2000 when he could expect to be recalled to work. In all of the circumstances, the Board is not persuaded that allowing the claimant to claim termination pay in respect of a termination that occurred in March 2000 represents an unjust enrichment as alleged.

(iii) Has the Claimant already received working notice of termination?

42. In the further alternative, the Company argues that the claimant has, in effect, received his statutory entitlement under section 57 of the ESA to notice of termination when he returned to work on June 26, 2000 to August 11, 2000. In this regard, the Company argues that it was entitled to require the claimant to return to employment following receipt of notice from him that he was treating his lay-off as a termination in order to provide him with working notice. The Company submits that the time spent by Mr. Greenside following his return to work in June, 2000 constitutes working notice as contemplated under section 57(1) of the ESA.

43. Having considered the applicant’s submission in this regard, the Board is not persuaded that the period of time worked following Mr. Greenside’s return to work on June 26, 2000 should be construed as working notice of his termination on or about March 6, 2000. section 57(1) of the ESA makes clear that an employer may not terminate the employment of an employee (such as Mr. Greenside) whose period of employment is eight years or more, unless the employer gives eight weeks notice in writing “and such notice has expired”. Subsection 57(14) of the ESA, in turn, contemplates the payment of termination pay in lieu of notice of termination where an employer terminates the employment of an employee contrary to section 57 of the ESA (ie. prior to the expiry of such notice).

44. In order for an employer to comply with the requirement under section 57(1) of the ESA to provide an employee with adequate notice of termination, the employer must therefore provide notice of termination in advance of the termination in issue. This is made clear by the requirement under section 57(1) of the ESA that “such notice has expired”, which is, in effect, a precondition to the employer’s entitlement to terminate the employment of an employee. Where that requirement has not been met and the employer nonetheless terminates the employee’s employment, Subsection 57(14) of the ESA requires the payment of termination pay in lieu of notice of termination.

45. In the present case, the employer is deemed to have terminated Mr. Greenside’s employment when he was given notice of indefinite lay-off having regard to subsection 8(3) of Regulation 327. The Board therefore finds that the period of time worked by Mr. Greenside from June 26, 2000 to August 11, 2000, which was many months after the termination in issue, cannot be construed as notice of termination contemplated under section 57(1), which, as previously noted, contemplates notice of termination in advance of the termination in issue.

46. This interpretation is also consistent with the purpose of notice of termination or pay in lieu thereof contemplated under section 57 of the ESA, which is to provide a period of adjustment or alternatively a financial cushion for dismissed employees in order to assist them during the period of looking for alternate employment. (Fleron Lumber Co. (Re), October 25, 1977 (Picher) E.S.C. 456; Old Ontario House, cited above). This purpose of providing employees with transitional asssistance would not be achieved if working notice could be provided by the employer many months after the termination in issue.

DISPOSITION

47. For all of these reasons, the Board concludes that the claimant is entitled to termination pay and vacation pay thereon as a consequence of the termination of his employment in March 2000 when the claimant was given notice of indefinite lay-off within the meaning of the ESA and regulations thereunder. As there is no dispute regarding the quantum of monies owing in these circumstances, the Order to Pay is hereby affirmed.

48. The Director of Employment Standards is directed to pay the monies held in trust, less the statutory administration costs, to the claimant, Mr. Greenside, as soon as practicable.

“Caroline Rowan”

for the Board