If an Ontario employer approves your unpaid leave of absence but later fires you for refusing to return before the agreed-upon end date, it is generally considered a wrongful dismissal. You can sue for a full common law severance package at the Superior Court of Justice.
Understanding Approved Leaves of Absence in Ontario
Life can be unpredictable, and employees often need time away from work for personal reasons, travel, or family emergencies. 📅 In Ontario, if you and your employer formally agree to an unpaid leave of absence for a specific duration, that agreement becomes a legally binding modification to your employment contract. Unless the original agreement explicitly states that the company has the right to recall you at any time, they cannot unilaterally force you to abandon your leave.
Unfortunately, some businesses experience sudden staffing shortages and demand that employees return to the office immediately. 🚨 If you are out of the province, handling a personal crisis, or simply unavailable, you might decline this early recall. If the employer in Toronto, Ottawa, or Mississauga reacts by firing you, this is a clear breach of contract. Terminating you under these circumstances is generally a wrongful dismissal, and you are entitled to comprehensive common law severance pay.
Step-by-Step Process: What to Do if Recalled Early
Facing pressure to return from an approved leave is stressful, especially when your job is threatened. 📋 Handling the communication correctly is crucial to protecting your legal rights and your eventual severance payout. Follow this step-by-step process in Ontario.
Step 1: Locate Your Original Leave Approval
Your strongest piece of evidence is the initial agreement. 📄 Find the email, formal letter, or Human Resources form where your manager explicitly approved the start and end dates of your absence. This document proves that your failure to attend work is not “job abandonment,” but rather a pre-approved condition of your employment.
Step 2: Decline the Recall in Writing
Never rely on a phone call to explain your situation. ✉️ Send a polite and professional email to your employer reminding them of the agreed-upon dates. State clearly that you are relying on the original agreement and cannot return until the scheduled end date. Reiterate your commitment to returning to your duties exactly as planned.
Step 3: Do Not Resign Formally
Employers will sometimes tell you, “If you don’t show up on Monday, we will assume you have quit.” ✋ Do not accept this framing. Send one final written message stating, “I am not resigning. I am currently on an approved leave of absence.” If they proceed to process your departure, they are firing you, which protects your right to Employment Insurance (EI) and severance.
Step 4: Consult an Ontario Employment Lawyer
Once you receive a termination notice or your Record of Employment (ROE), seek legal counsel. 💻 Contact a local employment law firm to review your leave agreement and calculate your severance entitlements. A lawyer will assess your age, years of service, and position to determine how many months of common law severance you are owed.
Step 5: File a Claim at the Superior Court of Justice
Your lawyer will handle the dispute from here. 🏛 They will issue a formal demand letter or file a Statement of Claim at the Superior Court of Justice. Facing a civil lawsuit usually forces the employer’s legal team to realize their mistake and negotiate a fair financial settlement.
Statutory vs. Personal Leaves of Absence
The type of leave you are on drastically impacts your legal protections in Ontario. 🔍 Here is how courts and the law differentiate between them.
| Type of Leave | Legal Protection Level | Can They Recall You Early? |
|---|---|---|
| Statutory Leave (ESA) (e.g., Maternity, Sick Leave) | Extremely High. Protected by the Employment Standards Act. | No. Attempting to force an early return or firing you for refusing is an illegal reprisal. |
| Approved Personal Leave (e.g., Extended travel, sabbatical) | High. Protected by Common Law contract rules. | Generally No. Unless the written agreement had a specific “early recall” clause. |
| Unapproved/Informal Leave | Very Low. | Yes. If you just stopped showing up, you can likely be fired for cause (job abandonment). |
How Much Does it Cost in Ontario?
Pursuing justice for a wrongful dismissal does not have to cost you your life savings. 💰 In Ontario, as of 2026, the legal costs are quite standardized and accessible.
- Court Filing Fees: Filing a Statement of Claim at the Superior Court of Justice generally costs about $229 CAD. If your total severance is under $35,000 CAD, you use Small Claims Court, costing roughly $108 CAD.
- Lawyer Fees: Reputable employment lawyers typically operate on a contingency fee basis for wrongful dismissals. You pay nothing upfront, and the firm takes 25% to 35% of the final severance package they win for you.
How Long Does the Process Take?
Resolving this type of dispute requires patience, but early settlements are common. 🕐 Once your lawyer sends a demand letter proving the employer breached the leave agreement, the company may quickly agree to an out-of-court settlement within 2 to 5 months. However, if the employer aggressively defends their actions, a full civil trial at the Superior Court typically takes 1 to 3 years.
Frequently Asked Questions (FAQ)
Can I claim EI if I am fired while on leave?
Yes, but the timing is complex. If you are on an unpaid personal leave, you are generally not eligible for regular Employment Insurance (EI) until your pre-approved leave period was scheduled to end. Once that date passes, if you remain unemployed due to the termination, your regular EI benefits can begin.
What if the company is facing a massive emergency?
Even in a corporate emergency, an employer cannot unilaterally breach a contract. While they can politely ask you to return to help, they cannot legally punish or fire you if you are unable or unwilling to cut your approved leave short.
Does an email from my boss count as a contract?
Absolutely. Under Ontario common law, an email from a manager or Human Resources clearly stating, “Your leave from June 1 to August 1 is approved,” is powerful written evidence that modifies your employment terms.
What if they replace me while I am away?
An employer can hire a temporary worker to cover your duties. However, if they hire a permanent replacement and inform you that your job no longer exists upon your return, that is a classic wrongful dismissal, and you are owed full severance.
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