Employment Law Show 640 Toronto – S7 E84

Summary

Fixed-term contracts, constructive dismissal facts, why you shouldn’t accept Employment Standards Act severance pay, termination pay and your workplace rights on Season 7 Episode 78 of the Employment Law Show on Global News Radio 640 Toronto and 980 CFPL in London.

Employment Lawyer David Vaughan, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Ontario on the Employment Law Show. David shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, and more.

What We Covered

Can I be fired before my fixed-term contract has ended?

1:00 – An employee was terminated from his job after 3 months of service. He had been employed under a fixed-term contract for a period of one full year. Under normal circumstances within common law, his severance pay entitlements as a short service employee would likely be limited to between 1 – 3 months of pay. But because the employee was on a fixed-term contract that did not include any early termination provisions, he was owed 9 months of severance.

Minimum Severance Pay under the Employment Standards Act compared to Common Law Severance

4:47 – A long service employee in his mid-50s with 17 years in a sales role was let go from his job. His employer told them that he was only owed 8 weeks’ pay under the Employment Standards Act (ESA). The company told him that if he signed the release form that was presented to him, he would be given an extra 2 weeks’ severance pay, for a total of 10 weeks of pay. This individual thought that this was a great deal.

David told the employee that 10 weeks of termination pay after 17 years of service was a grossly inadequate amount for a severance package. The Severance Pay Calculator would reveal that the difference between what the employee was offered and what he was actually owed was months of pay under common law. David explains how severance pay in Ontario works.

I was fired after I couldn’t perform the unexpected extra duties that were assigned to me. Can they do that?

6:36 – A retired member of the armed forces took a job with the City of Mississauga as a full-time temporary worker. After taking the job, he was told to assume additional responsibilities that were not originally part of the agreement. The employee was unable to perform all of the duties that had been heaped upon him, and he was terminated from his job 5 months later. The city will not disclose why they terminated. He was given $800 in severance pay.

David told the caller that while an employer can let an employee go for any reason, they must provide a severance package. Based on several factors, the caller was likely owed a few months of termination pay.

Cut in Salary and Constructive Dismissal

13:52 – The most common type of constructive dismissal case in Ontario is a reduction in an employee’s salary. An employer does not have an automatic right or ability to cut an employee’s salary down by a significant amount. That change would change the terms of employment that both parties agreed to when the individual was originally hired to the job. When an employer does make a large change to compensation, the employee may be able to argue that they have been terminated from their job and seek severance pay while they search for new employment.

Constructive Dismissal and relocation to a new workplace

16:47 – If an employer shifts an employee’s workplace from one location to another, and significantly changes the employees commute to and from work, the company may find itself on the receiving end of a constructive dismissal lawsuit. A notable change in work location could have a negative impact on an employee. It may result in increased commute times between the worker’s home and office, which could in turn impact their personal life and child care responsibilities.

Constructive Dismissal and a Poisoned Work Environment

19:45 – If an employee feels that the workplace has become “toxic” to the point that they can longer worker effectively and their mental or physical health is being threatened, they may be able to argue that their employment conditions have changed for the worse. If that claim holds true, they can depart from the workplace with a fair severance package to assist with their transition to new employment.

I quit after working for 14 years as a subcontractor with a company. Am I owed severance pay?

29:54 – An individual was working as a “subcontractor” for 14 years for the same company. The employer dictated where the employee went and what prices he charged to customers. The employee quit his job with that employer last year due to tax issues (the CRA considered his relationship with the company to be an employee-employer arrangement rather than a contractor-employer relationship and pursued him for over $400,000 in unpaid taxes). The caller wonders if the employer should be held liable for paying taxes he now owes to the government.

David told the caller that because he quit his job and was fired, he is not automatically owed full severance pay. However, because his resignation came after the employer began giving his work away to other contractors/employee, he might have the ability to claim a constructive dismissal.

How long can an employer keep an employee on contract for?

34:57 – Can an employer sign an employee to a contract that runs for 2 years or more? David told the caller that while he has seen contracts that run as much as 30 years with a new yearly contract signed each year, those extremely long-term contracts are not very enforceable. Once somebody has signed on to multiple contracts with a company over the course of several years, they are likely to be deemed an employee in the eyes of the law.

Experiencing an Employment Issue?

Before you call a lawyer, use the Pocket Employment Lawyer to find out if you might have a case.

Use The Severance Pay Calculator to find out how much severance pay you may be owed upon termination.

Call 1-855-821-5900, email Help@EmploymentLawyer.ca or fill out a contact form to get help now from an Employment Lawyer Toronto.

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