An inquiry that we are getting more frequently is from employers questioning what happens when they can no longer bring on new hires or summer students who are scheduled to commence work with them in the coming weeks, due to COVID-19. Employers are facing layoffs with their permanent staff and need to bring them back before they can bring on new or temporary employees.
If the employee has already accepted the offer of employment for the summer, the fact that the employee has not yet commenced employment does not make them any less entitled to damages for breach of their employment contract. The employer is breaching the contract by not bringing them on at their scheduled start date. And remember – employment contracts can be written or unwritten. An employer could have a verbal contract of employment with the new hire.
The same laws of employment will apply: The employee will have a positive legal obligation to mitigate their damages by finding replacement income. The damages for the breach of contract will be specific to each individual case. For businesses that have had to shut down, for the moment there may be a frustration of contract argument. Whether that still applies once those non-essential businesses are allowed to open up again will also depend on individual circumstances.
The federal government has indicated it will be addressing expanding relief measures and will be providing those details this afternoon. Currently, the CERB benefits do not cover everyone who has stopped working for COVID19-related reasons.
To minimize damages, consider whether these people can work remotely, even though they have not been part of the workplace. It is a new world and we have heard many stories of new employees working remotely for an employer they only met during the interview process.
No matter how big or small the matter, we are always accessible to all of our clients, placing their financial realities and long-term interests first and foremost. Lorrie Por, Mana Khami, and David Spence from our Employment and Labour Department are available to assist with any questions you may have about workplace matters relating to COVID-19.