Employment Contracts in Canada | Employment Law Show TV – S1 E3

Summary

WHAT YOU NEED TO KNOW ABOUT EMPLOYMENT CONTRACTS, suspension without pay, fired while on mat leave and more on the Employment Law Show with employment law expert Lior Samfiru. Discover your workplace rights and learn everything you need to know about employment law in Ontario and British Columbia on Season 1 Episode 3 of the only employment law show on TV in Canada.

What We Covered

► Week That Was – My long term disability claim involving Fibromyalgia has been denied. My employer is now telling me to come back to work immediately, but I have a doctor’s note saying that I am still sick. If I don’t return, my employer will treat it as a resignation. Is that legal?

1:42 Lior explains that if an employee is unable to work and they have a note from their doctor supporting their absence, the employer cannot refuse the medical leave. If the employer decides to terminate the employee’s employment in response, they would likely face legal action from a wrongful dismissal lawyer.

READ MORE
• Doctor’s notes in Ontario
• B.C. employees and sick notes
• Alberta employers and sick notes

► What questions can my employer ask if I’m sick?

3:06 Lior says that an employer can ask an employee how long it may take them to return to work. They can also inquire about what limitations an employee may have. An employer does not have the right to know what an employee’s medical condition is.

► A caller from the Employment Law Show – I’ve been working for a trucking company for 4 years, with a clean employment record. I was fined during a traffic stop two weeks ago. My company reacted by writing me up for a first offence and I was suspended without pay for 1 week. Can they do that?

3:55 Lior tells co-host John Scholes that an employee does not have to accept an unpaid suspension. Such a suspension is generally considered a change to the terms of employment. An employee would likely have the ability to resign with severance pay with help from a constructive dismissal lawyer at Samfiru Tumarkin LLP.

► TerminationQuestions.com – I was poached from another organization. My new boss has turned into a “ball breaker”. She has fired 9 people in 9 months! I am on a 6 month probation period, and they have the right to let me go at any time. What recourse do I have if I am fired?

6:04 Lior explains that because the employee was hired away from a previous job, they may be owed “enhanced severance.” Their severance package would likely be calculated based on years worked at the previous job as well as the one they have just been fired from. An employment contract may or may not contain a termination clause that refers to years spent at a previous company and how that plays into common law severance pay.

Lior also points out that a 6 month probationary period, during which time an employee can be let go without cause and without severance pay, is not legal. A probation period in Ontario and British Columbia, where severance is not owed upon termination, can only be for 3 months. The probation period must also be included in the signed employment contract in order for it to be legal.

► Why the Severance Pay Calculator can help you determine the amount of severance pay you are owed if you lose your job.

8:57 The severance pay calculator is a unique tool used successfully by over 1,000,000 Canadians to determine what their rights to common law severance pay are. The calculator was designed by employment lawyer Lior Samfiru, and is relevant to employees in jurisdictions such as Ontario and British Columbia.

► A caller from the Employment Law Show – I’m a 60-year-old senior sales rep, making a pretty good income. They’ve hired newer sales reps making much less than me, and likely want me to retire. I wouldn’t mind retiring, but only if they pay me a fair severance package. What should I do?

12:10 Lior explains that the employee does not have to retire if he doesn’t want to. If his employer begins taking steps to make his life progressively more difficult, in an effort to force him to resign, the employee can treat his employment as being constructively dismissed and leave with a severance package. Now, the employee can decide to approach their employer to negotiate a severance package in exchange for their resignation, without resorting to a constructive dismissal claim.

► What You Need to Know About Employment Contracts in Canada

• Why are employment agreements important? – 13:58
• What’s better, a handshake deal or a 10 page agreement? – 14:46
• What should employees watch out for when signing agreements? – 16:02
• Can employment agreements be negotiated? – 17:37
• So you signed an employment contract without advice. Now what? – 18:35

► A caller from the Employment Law Show – I’m a 61-year-old senior manager at a company who has had 12 stellar performance reviews. The company just brought in a new CAO, who recently gave me a poor review. I believe my employer is taking steps to fire me. What can I do?

20:25 Lior explains that, based on the caller’s information, it is possible that the employer is trying to build up a case to dismiss the employee for cause. In a termination “for cause” an employer has the ability to fire an employee without providing them with a severance package. However, it is extremely difficult for an employer to establish a termination without severance pay. If you find yourself in this situation you should contact the employment lawyers at Samfiru Tumarkin LLP for help.

► TerminationQuestions.com – I am 5 months into my maternity leave and got a call on Friday that the company no longer has a job for me, and that they will be paying me severance. Is the company allowed to do this?

23:09 Lior explains that an employee on a maternity leave or a parental leave has a right to their job when they return to work. They are entitled to return to the same job, at the same pay, and at the same location. A company cannot decide to refuse to take the returning employee back, or give their job away to a temporary replacement. An employer is allowed to let the employee go, if the termination is unrelated to the maternity leave.

► Why is there a big difference between The Severance Pay Calculator and the Ministry of Labour when it comes to severance pay?

25:32 Lior explains that the Ministry of Labour (Ontario) and Employment Standards Branch (BC) only concerns itself with your minimum entitlements to severance pay. Those minimum entitlements are only a small portion of what employees are actually owed. Common law severance pay, or common law termination pay, is what an employment lawyer can help you obtain. The difference between minimum amounts under the Employment Standards Act and common law could be tens of thousands of dollars.

Next Episode: Employment Law Show S1 E4 – Independent Contractors vs. Employees

Previous Episode: Employment Law Show S1 E2 – When to Consult an Employment Lawyer