In New Brunswick, unless your employment contract explicitly allows for it, a temporary layoff is generally considered a “constructive dismissal” under common law. This means your employment has effectively been terminated, and you may be legally entitled to demand full severance pay.
Being told not to come to work because of a “shortage of hours” or a “temporary furlough” is incredibly stressful. Many workers in cities like Moncton, Fredericton, and Saint John assume their employer has an automatic right to send them home without pay. 💼 However, Canadian employment law heavily protects non-unionized workers from bearing the financial burden of a company’s slow season. Understanding how long an employer can temporarily lay you off without it becoming a termination in New Brunswick is vital to protecting your income.
There is often a massive misunderstanding between what the provincial Employment Standards Act allows and what the courts enforce under common law. While the government sets minimum rules for paperwork and basic notice, the common law dictates that fundamentally changing your income to zero is a breach of contract. In this guide, we will explore how to identify an illegal temporary layoff and what steps you can take to claim your rightful severance.
Step-by-Step Process in New Brunswick
If you are suddenly sent home without pay, you must act carefully. Accepting the layoff without a fight can sometimes be interpreted by the courts as you “agreeing” to the new terms, which limits your legal rights. Here is how most employees handle an unexpected pause in their employment.
Step 1: Review Your Employment Contract
The first thing you must do is read the employment contract you signed when you were hired. 📝 If your contract includes a clear, written clause stating the employer has the right to temporarily lay you off during slow periods, they are generally allowed to do so. However, if there is no such clause (which is the case for most workers), the employer cannot legally stop paying you simply because business is slow.
Step 2: Request a Record of Employment (ROE)
Whether the layoff is legal or not, if your earnings are interrupted for seven consecutive days, your employer is legally required to issue a Record of Employment. You need this document immediately to apply for federal Employment Insurance (EI) benefits through Service Canada. Requesting your ROE does not mean you accept the layoff; it simply ensures you can feed your family while you figure out your legal options.
Step 3: Consult an Employment Lawyer for Constructive Dismissal
If you do not have a layoff clause in your contract, you should speak to a local law firm immediately. ⚔ By cutting off your wages, the employer has likely “constructively dismissed” you. A lawyer will draft a formal demand letter stating that you treat the unapproved layoff as a termination, demanding full severance pay based on your age, years of service, and the specific nature of your job.
How Much Does it Cost in New Brunswick?
Losing your job means money is tight, but asserting your rights does not have to drain your savings. Here is a breakdown of the typical financial compensation you might pursue and the costs involved:
| Financial Aspect | Estimated Amount / Details |
|---|---|
| Minimum Statutory Notice (Under 5 years of service) | 2 weeks of pay (Employment Standards minimum) |
| Common Law Severance Pay | Generally 2 to 4 weeks of pay per year of service |
| Employment Lawyer Initial Consultation | $150 – $350 CAD (Some offer free reviews) |
| Lawyer Contingency Fee (If you win) | Typically 25% to 35% of the settlement amount |
Many employment lawyers in New Brunswick work on a contingency basis, meaning you only pay their legal fees if they successfully secure a severance package from your former employer.
How Long Does the Process Take?
If your contract does allow for layoffs, the Employment Standards Act requires an employer to provide written notice for any layoff exceeding 6 days, unless the lack of work was entirely unforeseen. ⏱ If you decide to sue for constructive dismissal, negotiating a fair severance package through lawyer demand letters usually takes 3 to 8 weeks. If the employer refuses to pay and forces a court battle, litigation can take 1 to 2 years to fully resolve.
Frequently Asked Questions (FAQ)
What exactly is constructive dismissal?
Constructive dismissal occurs when your employer makes a major, negative, and unauthorized change to your employment terms (like reducing your pay to zero via a layoff, drastically changing your hours, or demoting you). Instead of formally firing you, they create a situation where you are forced to treat the contract as terminated.
Can I be laid off without notice if the business is slow?
Under the provincial Act, an employer can lay you off without formal notice for up to 6 days. However, under standard common law, doing this without a prior contractual agreement still amounts to a termination, making them liable for wrongful dismissal damages.
Do I have to wait to see if they call me back?
No. If you have been unlawfully placed on a temporary layoff, waiting too long to object can actually hurt your case. The courts may decide you “condoned” or accepted the layoff by remaining silent. You should seek legal counsel within a few days of being sent home.
Can unionized workers claim constructive dismissal?
No. If you are part of a labour union, your rights regarding layoffs, recall dates, and severance are strictly governed by your Collective Bargaining Agreement (CBA). You must contact your union representative to file a grievance rather than hiring a private employment lawyer.
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