Put on a performance improvement plan? Now what? | Employment Law Show TV – S6 E06

Episode Summary

PUT ON A PERFORMANCE IMPROVEMENT PLAN? NOW WHAT?, demoted by the employer, seniority during a layoff, and more on Season 6 Episode 06 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

Employment terminated due to medical leave

I’ve been on leave for about a year due to a serious medical condition. I’m receiving treatment but my employer recently informed me that my employment will end and I won’t be entitled to severance because I’ve been on leave. Is this right?

• Accommodating an employee’s illness: Employees are able to stay on leave for as long as necessary and cannot be terminated due to a medical condition as long as they have their doctor’s support. Employers can eventually terminate an employee if they have been on leave and unable to work for a long time however a year is too soon. Employers who terminate employees due to illness are potentially violating their employee’s human rights.

Given months of working notice with no additional severance

A family member has been given 8 months of working notice after 37 years with the company. At the end of that time, she’ll be paid unused vacation time, but no severance. Is she owed anything?

• Working notice period: Long-service employees are typically offered close to the maximum amount of severance which can be up to two years of severance entitlements. Employers are able to give employees advance notice of termination in order to lessen the amount of severance offered as long as the amount of notice is sufficient. For employers who do not give enough notice, severance has to be offered.
  • WATCH TO LEARN MORE
    Employment Law Show Season 3 – Working Notice of Termination

Demoted and humiliated by an employer

Two weeks ago, I was brought into a meeting (where I met my replacement) and told that I was being demoted from the manager to “alleviate my burden”. I was completely blindsided and embarrassed by this. What should I do?

• Major changes to job position: Employers do not have the right to demote an employee as it is a significant change to the terms of employment. A demotion can be potentially humiliating and uncomfortable for employees and can lead to constructive dismissal. Employees do not have to accept a demotion.

Put on a performance improvement plan – Now what?

• What is a Performance Improvement Plan (PIP): A performance improvement plan is a plan implemented by employers in order to improve an employee’s performance and provide assistance for an employee to improve at the workplace. A PIP is not the same as a performance review.
• Options if disagreement with a PIP: A PIP can often be a step towards a termination for cause by employers as they wish to show they tried to help the employee but the situation did not improve. Employees who do not agree with a performance plan should voice their dissent to their employer in writing.
• An employee doesn’t protest an unreasonable PIP: Employees who do not voice their disapproval of the PIP are considered to have agreed with the performance plan. Accepted plans can be held against an employee in the future if they are terminated.
• Medical leave while on a PIP: Employees should not take a leave of absence to delay a performance improvement plan being implemented. It is beneficial for employees to acknowledge they have received a copy of the plan and work with their employer to address the situation.
• Fired “for cause” due to failed PIP: Employers can typically try and use a PIP in order to terminate an employee for cause however it is very difficult to terminate employees for cause. Employees who are lacking in terms of performance, however, can still not be terminated for cause in most cases. Many employers terminate employees for cause even though they are doing so wrongfully.
• When to talk to an employment lawyer: Employees who feel that their employers are building a case against them should contact an employment lawyer as soon as possible. Employees who have been let go for employment reasons should also reach out for legal advice.

Commission-based employees not given adequate severance

I was laid off from my commission sales job for 7 years due to the pandemic. I was given minimum severance, but not my vacation pay. I was told I’m not owed any, and that it was always part of my commission.

• Entitlements upon termination: Vacation pay is calculated on top of salary and commission and employers cannot forgo offering it to their employees. Employees are within their rights to file a complaint with the Ministry of Labour for unpaid wages, such as overtime and vacation pay. Severance for commission-based employees is calculated on the average amount of earnings.

Does time spent during layoff count towards seniority

I was put on a layoff a year ago due to COVID-19. I had been with the company for 17 years up until that point. Should I count the year on layoff towards my seniority, for a total of 18 years, if I ask for severance?

• Rights despite a layoff: Employees who are put on a temporary layoff can treat the layoff as termination and pursue their severance entitlements. Despite the pandemic, employers do not have the right to place employees on temporary layoff and employees do not have to accept it. For employees who have chosen to accept the layoff and are eventually terminated, the time spent on the layoff is considered to be part of seniority and length of service.

Workload doubled by the employer upon return from LTD leave

I am returning to work after my insurance provider cut off my long-term disability benefits. Not only am I not physically and mentally ready to return, but my employer is nearly doubling my workload.

• Disability and employment issues: Individuals who have had their long-term disability benefits cut off despite the fact that they are unable to work should contact a disability as soon as possible. Employees should not return to work unless their doctor approves of them to do so. Employees who are cleared to return to work might need accommodations by their employer and their treating doctor should provide the necessary accommodations required. Employers are obligated to provide the necessary requirements for employees to return to work successfully.

Factors that determine severance entitlements

A friend who works in HR told me severance pay is one week for every year you work for a company. Are there any other factors that go into a severance package?

• Calculating severance pay: While minimum entitlements might be a week per year of service, common law severance entitlements are calculated on a number of factors. The main factors that determine severance are the age of an employee, the length of employment and their position. In some cases, severance entitlements can be up to 24 months of severance.

NEXT EPISODE: Employment Law Show S6 E07 – 5 facts about temporary layoffs

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