There is no question that in the initial months or year following the onset of the COVID-19 pandemic, most employers were struggling with unchartered issues.
Many decisions about managing the workplace were made out of necessity, and without the benefit of having these novel issues previously considered by the courts. This is now starting to change as the courts are rendering more decisions that consider the impact of COVID-19 on the workplace.
In the recent decision of Yates v. Langley Motor Sport Centre Ltd., 2021 BCSC 217, Mr. Justice Mayer considered the appropriate amount of pay in lieu of notice for an employee that was considered to be terminated without cause. The employee, Ms. Yates, worked with the dealership as a Marketing Manager for a little over 8 months before she was laid off as a result of the pandemic. She did not return to work, and was ultimately terminated.
There were two key takeaways from this case:
- First, the Court found that Ms. Yates’ length of service and age did not justify a longer notice period than 2 – 3 months of pay, but given the lack of available work as a result of a depressed job market arising from the COVID-19 pandemic, the Court awarded a longer notice period. As such, the Court awarded Ms. Yates 5 months’ pay in lieu of notice.
- The Court then deducted the amount of the Canada Emergency Response Benefit (CERB) that Ms. Yates received from the amount owing. In deciding to make this deduction, the Court found that because this was a benefit that was triggered as a result of the termination and was not a benefit that Ms. Yates or her employer contributed to (such as employment insurance), it was appropriate to deduct what she received from the amount that Ms. Yates was owed.
New Considerations | Same Result
In this case, the ultimate result was the employer was ordered to pay roughly the same amount that it would have had to pay Ms. Yates prior to the pandemic. This was only the case because the employee accessed CERB. It is not yet clear what the outcome would have been had she not accessed this benefit. It may be that the Court would have found the employer had to pay a higher amount. Alternatively, it may be found the employee should have accessed the benefit.
The legal impact of the pandemic on the workplace is constantly evolving.