Rights of Older Employees in an Aging Workforce | Employment Law Show TV – S4 E8

Episode Summary

RIGHTS OF OLDER EMPLOYEES, fired over sick day use, temporary layoffs, returning from a disability leave, severance pay, and more on Season 4 Episode 8 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need to know about employment law in Ontario, British Columbia, and Alberta, on the only employment law show on both TV and radio in Canada.

Episode Notes

Employee terminated for cause for using sick days

I work at a manufacturing plant and used some of my sick days over the course of a year for minor surgeries. I  used more sick days than I was allotted by my employer. After I went over the limit, my employer warned me a few times. When I took more time off for surgery I was terminated for cause. Can I be fired for taking too many sick days? Can an employer discipline an employee for using sick days?

You can take as many days as you need to if you are legitimately sick, regardless of how many sick days a company provides. Paid sick days only mean that you will be paid by the company if you use the allotted sick days. Your employer can’t discipline or let go an employee for being sick. In this case, the employee has been wrongfully dismissed.

Segment starts at 2:06

CALL: Working notice vs. severance pay

The rumour at our company is that when they want to terminate a manager’s employment, they will give them months of working notice instead of severance to save money. So rather than provide a severance package, the company will tell you when they plan on firing you down the road. Can they do that?

When a company has to pay severance, they have two options: they can pay severance, or they can give advance notice. As long as a company provides sufficient notice, they may not owe severance.

Segment starts at 5:11

Severance pay for a temporary or contract worker

I’m 55, and have been an office administrator at a business for 11 years. The company has seen a drop in profits the last few quarters, and as a result, they want to put me on a 10-week temporary layoff. My contract doesn’t say they can do this. Do I have grounds for severance? If I accept this layoff, will my years of service reset when I return back to work?

An employee in this situation is likely owed severance pay. To determine the amount of severance you may be owed upon termination, use the Severance Pay Calculator.

Segment starts at 8:55

Rights of Older Employees in an Aging Workforce

1️⃣ Can an employer fire an older employee because of their age? – 14:35

You cannot be let go or disciplined in any way because of your age. That would be age discrimination, and we have laws that protect employees from being mistreated because of their age. We no longer have mandatory retirement at age 65, and an employee can work as long as they want.

Segment starts at 14:35

2️⃣ An older employee is becoming less productive. What are the employer’s options? Discipline? Termination?

An employer can expect that an employee is productive and does the job he or she is paid for. In some situations, if an employee is becoming less productive, the first thing the employer needs to do is understand why the employee is being less productive. If the employer finds out that there are age or health-related issues, they have to consider accommodating the employee, such as providing assistance, changing their hours, or altering their duties.

Segment starts at 15:58

3️⃣ Should an older employee talk to their employer if they find they are struggling at their job?

If you are in a situation where there is something going on that is going to impact your ability to do your job, you should tell your employer. Be upfront, tell them what it is, what you’re doing about it, and also what your employer can do to help you. If you don’t tell your employer, they will notice, and assume the worst. Once you tell them, you are protected, and you are required to get accomodation.

Segment starts at 17:41

4️⃣ Can an employer suggest to an older employee that they resign from their job?

There is a line that an employer can’t cross. An employer can ask if an employee plans to retire, but they cannot push an employee out, suggest that they retire, or tell them they don’t belong anymore. That becomes harassment and possibly a human rights violation.

Segment starts at 19:03

5️⃣ How is severance pay calculated for older employees?

Age is always a factor in deciding the amount of severance an employee is entitled to, so older employees may get more severance.

Segment starts at 20:30

CALL: Employee let go while on a medical leave

I am on long-term disability and getting ready to return to work. My employer just told me that the position I held for 15 years no longer exists. Are they obligated to put me into a different position or am I owed a severance package?

If you’ve been off on long-term disability leave and you want to return, but the job doesn’t exist, there are a few things to consider. First, is it in fact true that the job doesn’t exist anymore? If they are making excuses, that could be a human rights violation. Giving the company the benefit of the doubt, if they have another job for you, but it’s very different from your original role, that could be a constructive dismissal.

Segment starts at 21:34

CALL: Employee vs. Independent contractor

I worked for 3 years as a real estate agent, but was structured as an independent contractor. After our team’s performance slid a bit and I made a blunder, I was mailed a termination notice. When I called them, they offered to hire me back on hourly pay that would have been 25% less than my previous salary. Are real estate agents independent contractors?

Real estate agents are actually employees. The fact that you are treated like an independent contractor does not mean that you are one in the eyes of the law. Real estate agents are owed a severance package when they lose their job.

Segment starts at 25:25

Next Episode: Employment Law Show S4 E9 – What Employees Should Never Do

Previous Episode: Employment Law Show S4 E7 – Termination Without Cause