THE QUESTION
I work in a retail role at a shop in Toronto. My contract is for 20 to 25 hours a week, but I haven’t been scheduled for a shift in three weeks. My manager isn’t responding to my texts asking what’s up. Meanwhile, the bills need to get paid. Would I qualify for employment insurance in this case?
THE FIRST ANSWER
Alia Besharat, associate, Ogletree Deakins International LLP, Toronto
When your employer suddenly stops scheduling you for shifts, this could be grounds for a constructive dismissal. A constructive dismissal refers to situations where the employer has not directly fired the employee, rather the employer has either failed to comply with an essential term of the employment contract or has unilaterally changed the terms of employment. In this case, that would be by not scheduling you for shifts, contrary to what’s stated in your employment contract.
When an employee has been constructively dismissed, the law treats them as if they had been terminated. This means that for the purposes of EI eligibility, being constructively dismissed is the same as being terminated without cause. That being said, it is vital that you speak with your employer directly before applying for EI to ensure that there has been no miscommunication regarding your availability. In this case, your employer may even support your EI application by providing you with a record of employment indicating that you have been temporarily laid off or dismissed without cause.
If you ultimately do not hear from your employer after making reasonable efforts to speak with them, you can apply to Service Canada on the basis that you have been dismissed. Whether you are eligible for EI benefits depends on various factors, including the circumstances of your dismissal, your employment history and the specific EI eligibility criteria.
The threshold in law for a constructive dismissal is high, so it is strongly suggested that you go beyond text message communication. Rather, communications should be by way of e-mail and phone calls. Be sure to keep a record of all your attempts in the event that you need to rely on your records down the line.
THE SECOND ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law, Toronto
Based on your description, your situation may qualify as constructive dismissal because your employer has not scheduled you for shifts for three weeks, altering the fundamental terms of your employment contract. You may be entitled to claim your termination entitlements under the Ontario Employment Standards Act or reasonable notice under common law, depending on the specifics of your contract.
Your employer has an obligation to treat you in good faith, and you should communicate with your manager, expressing your concerns and reminding them of their responsibility to respond promptly.
In terms of EI, to qualify for regular benefits you must meet certain criteria, such as being employed in insurable employment, losing your job through no fault of your own and being without work and without pay for at least seven consecutive days. In your case, I cannot see any fault on your part.
Also, ensure you have worked the required number of insurable employment hours, which are determined by the unemployment rate in your area. In Toronto, where the unemployment rate is 6.9 per cent, you will need to have worked at least 665 hours in the 52 weeks immediately prior to your last workday in order to qualify for EI. However, if you have already received EI benefits earlier within the past 52 weeks, you must work at least 665 hours between the first date you received your previous EI benefits and your last workday. If you reach that number, you can apply for EI to solve your immediate financial issues.
Lastly, remind your employer of their obligation to properly issue a record of employment.
Considering the complexity of your situation, seeking legal advice and contacting Service Canada for guidance on an EI application would be prudent steps to take during this challenging time.
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Andrea Yu