Can My Employer: Top 10 Employment Questions

by Lior Samfiru


Wednesday, August 30th, 2017 at 3:00 am


Can My Employer…

Everybody has questions about what their employer can and can’t do with regards to employment. At Samfiru Tumarkin LLP, we’ve fielded questions ranging from the most common, to the most obscure.


Here are 10 of those questions as answered by Canadian employment lawyer Lior Samfiru, host of The Employment Hour in Ontario and British Columbia.

1) Can My Employer Change My Job or Hours of Work?

This question is definitely one of the top two or three questions we are asked.

The short answer is: no. In most cases, your employer does not have the right to change the terms of your employment in a significant way.

What would be deemed significant changes from case to case. Significant changes can include:

  • Change in your shift (9am – 5pm becomes a 7am – 3pm shift)
  • Demotion
  • Change in Compensation

If your employer does substantially alter your employment, you can either accept that change, or treat your employment as being terminated. The latter would be what we call a Constructive Dismissal. A constructive dismissal would entitle you to severance.

can my employer

2) Can My Employer Put Me on a Performance Improvement Plan?

The short answer is “yes”, but the real question is whether or not a performance improvement plan is justified. Did you do something that required your employer to put you on a performance improvement plan?

If you did do something to warrant this reaction by your employer, then it is what it is. Do your best to adhere to the plan.

But what if you believe that you are not deserving of a performance improvement plan? Unfortunately, you can’t prevent the employer from putting you on a plan, but you can still protest the decision. Put your position on the matter in writing. Get it on the record. Tell your employer why you disagree with a performance improvement plan. Perhaps you believe that you did nothing wrong in the first place. Make your opinion official.

If you don’t present your employer with an argument, it will appear as though you accepted the situation. In that case, it will be very difficult down the road to argue that a performance improvement plan wasn’t appropriate. Do no remain silent in this scenario.

Listen
Don’t stay silent with a job performance plan

3) Can My Employer Pay Me Less Than Other Employees?

Learning that a coworker is earning a higher salary than you can be very disheartening, especially if you feel that your knowledge and skills outrank those in your pay grade.

Is your employer allowed toy pay you less than your colleagues?

The short answer is: yes.

However, your employer cannot pay you less based on discriminatory factors. They can’t play you less because you are a woman. They can’t pay you less because you have a medical condition, or because of your age.

A coworker is allowed to negotiate a higher salary than you. It may not be fair, but it is legal.

4) Can My Employer Make Me Come Back to Work Contrary to My Doctor’s Opinion?

The short answer is: no, absolutely not. An employer cannot make you do something that is contrary to what your doctor is saying.

Your employer is not in any position to determine whether you can work or not. The only one who is in that position, is your doctor. If your doctor declares that you need to take a day, a week, a month or even a year off work, your employer must give you the time off.

It is illegal for your employer to do the following:

  • Prohibit you from taking time off work, as recommended by your doctor
  • Discipline you for your absence
  • Threaten you for taking time off
  • Treat your medical leave of absence as a resignation

If you are unable to work, your obligation as an employee is to provide your employer with a doctor’s note. Once you’ve done that, you’ve essentially fulfilled your legal obligation..

If your employer is responding negatively to your situation, or refuses to accept your doctor’s opinion, contact us immediately.

Sick Note Ban: Open Season on Sick Days?

5) Can My Employer Let Me Go?

The answer to this one is usually and almost always: yes, they can.

An employer generally can let an employee go at any time, and for any reason, as long as they pay proper severance.

Often times you’ve done nothing wrong to earn a termination. Many are let go unfairly. That said, “unfair” does not necessarily mean “illegal” in the eyes of the law.

The problem arises when you are fired, but not offered adequate severance. This happens in over 90% of these situations! Employees are routinely offered at lot less than what they are actually owed. That is what makes the situation ILLEGAL.

It is also illegal to be fired because of your age, medical condition, ethnicity and other similar factors. An employer can’t fire an employee because they are old, but they can fire an employee because they think someone else can do a better job – so long as they pay full severance.

Other Resources
Ontario and BC Severance Pay Calculator
How is Severance Calculated Anyway?
How to Calculate Severance Pay

6) Can My Employer Lay Me Off Temporarily?

The answer almost always is: no, they can’t.

In fact, a temporary layoff is considered a terminationThis means that if you have been laid off temporarily, you can chose to treat that as a termination and receive severance pay.

You do have the option of accepting the temporary layoff, in the hopes that you will eventually be called back to work. Keep in mind, though, that if you accept a temporary layoff with an employer even once, you’ve given them the right to do it to you again in the future.

7) Can My Employer Make Me Work Overtime Hours?

The short answer is: it depends on what the terms of employment were when you were hired.

If you were hired to work 40 hours a week, but there was no mention of overtime hours, your employer cannot make you work 50 hours a week. Your employer cannot change the terms of employment.

Constructive Dismissal comes into play when your employer asks you to work overtime, despite the fact that overtime was not part of the terms of employment. If the employer ignores your protest and demands that you work the extra hours, you could potentially walk from your job with severance.

If you have already agreed to work overtime hours in the past, but then decide that you no longer wish to do so, you are out of luck. You’ve already established a history of acceptance.

This is why it so very important to read over your employment agreement BEFORE signing it. You should completely understand the terms of your employment before you accept them. If you want a legal professional to review your agreement to ensure that your rights will be maintained, contact us for a consultation.

8) Can My Employer Punish Me If I Complain About Workplace Harassment?

An employer cannot penalize somebody for raising issues concerning workplace harassment. That is illegal.

The law makes it very clear that an employee cannot be punished, demoted or fired because they’ve presented a case of workplace harassment to their employer. That is what we call a “reprisal”. Not only can an employer face legal action by the employee, but they can also be fined by the government.

When faced with workplace harassment, the best course of action is always to first inform your manager, HR representative, or similar person in a position of authority. Let them know what happened.

9) Can My Employer Take Away My Severance If I Don’t Accept an Offer?

You are ushered into a meeting with your employer, where they tell you that you are unfortunately losing your job. They hand you a piece of paper. On that paper is an amount representing their severance offer. Accompanying that amount is a line that states the offer must be signed by the end of the work week. If you don’t meet their deadline, they will not provide you with severance.

Everybody is frightened by the prospect of their employer pulling a severance offer off the table, leaving them empty-handed.

Let’s be clear: an employer cannot set a deadline on a severance offer! Your legal entitlements don’t expire on Friday at 5 o’clock.

Additionally, the offer they have presented you with is almost guaranteed to be much lower than what you are actually entitled to!

Often times, an employer will count on you being shocked by the sudden firing, and frightened by the prospect of losing a severance offer. They will use these factors in an attempt to have you sign an offer that works in their favour, not yours.

That is why we always recommend that you seek legal advice before signing a severance offer. Take the time to review the situation. NEVER sign under pressure!

10) Can My Employer Close Down Shop and Avoid Paying Me Severance?

The company you work for is shutting down permanently. Because they are closing their doors, there likely isn’t any money left to pay your severance, right?

Wrong.

The only way an employer can avoid paying severance, is if they are formally in bankruptcy (see Sears Canada). Additionally, a company can’t just decide to enter bankruptcy. You can only declare bankruptcy when your debts outweigh your income and value of your assets.

Many companies that cease operations are nowhere near bankruptcy. They’ve merely decided that the business is no longer profitable. Those businesses will still have accounts receivable, equipment, property and other assets which can be accessed in order to pay severance.

 

Please do not hesitate to share this resource with family, friends and colleagues that could benefit from the information that we’ve provided. If you have ANY questions about what I’ve discussed here, please email lior@stlawyers.ca. If one of these answers connects with your current dilemma, I recommend you contact us to determine what we can do to help.

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