Fact or Fiction: Termination for Cause | Employment Law Show TV – S8 E03

Episode Summary

FACT OR FICTION TERMINATION FOR CAUSE, returning from maternity leave, resigning due to workplace harassment, and more on Season 8 Episode 03 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 Alberta, Ontario and British Columbia, on the only employment law show on both TV and radio in Canada.

Episode Notes

Denial of LTD leads to request to return to work

I applied for short-term disability benefits and was approved. After a few months, I was still unable to work and applied for long-term benefits. I was denied LTD by insurance and now my employer expects me to return to work. What can I do?

• Disability benefits and employment status: Insurance adjusters, as well as employers, do not have the ability to decide when an employee is ready to return to work. Employees on disability leave must speak to their treating doctors to receive approval as well as possible accommodations. Disability benefits are often denied by insurance companies. Employees should speak to a disability lawyer to file a legal claim and provide their employer with the necessary documentation stating they are still unable to work.

Terminated due to false accusations

My friend has been in janitorial services for a private school for 14 years. He was recently terminated due to some false accusations and told to accept the severance offer of $7000.

• Severance package calculations for employees: Employers are within their rights to terminate an employee without cause, as long as adequate severance is provided. Severance pay will be determined based on a number of factors, including an employee’s age, position and years of service. Employers must prove that an employee has exhibited serious misconduct in order to terminate an employee “for cause”.
  • Learn more about Severance Pay
    Severance in B.C
    Severance pay in Ontario
    Severance packages in Alberta

Lost employment while on maternity leave

As I prepared to go on maternity leave, I was informed that if terminated during my leave, I would not be offered severance. Is this right?

• Employee rights regarding maternity leave: Employees cannot be terminated as a result of pregnancy or taking maternity leave. Maternity and parental leave are considered to be job-protected. Terminating an employee due to these circumstances can be considered a human rights violation. Termination that is not due to maternity leave would still require full severance entitlements to be paid.

Employer cuts off gas allowance for employee

The company has decided to stop giving me a gas allowance, something they’ve done for the past eight years. This will result in a significant loss every month.

• Constructive dismissals: Employers do not have the ability to make major changes to an employee’s job without their consent. A significant change can be considered a drastic reduction or restructuring in compensation. Changes made without consent are considered to be constructive dismissals and employees would be owed severance pay.
  
  • Learn More
    • Changes made to your job in Alberta
    • Significant changes to your employment in British Columbia

Fact or Fiction: Termination for Cause

• Considered the “capital punishment” of employment law: Terminations for cause are considered to be the capital punishment of employment law as they occur due to severe misconduct exhibited by an employee. In most cases, employees who have been terminated “for cause” have been wrongfully dismissed.
  
• Errors and poor performance: Employers generally cannot terminate an employee “for cause” as a result of poor performance and simple mistakes. Employers must prove that there has been training or warnings provided to an employee prior to termination.
• Prove termination “for cause”: It is very difficult to prove “cause” and is the employer’s responsibility. After an employer has proven that an employee has exhibited misconduct, there must also be proof of disciplinary action. A sole incident is generally considered not enough to terminate for cause.
• Do not receive severance pay: Employees who are justifiably terminated for cause do not receive severance pay upon termination. It is rare for a termination for cause to be implemented accurately.
• Employees fired have been wrongfully dismissed: Employees terminated for cause have often been wrongfully dismissed and should speak to an employment lawyer as soon as possible.

Resigned due to workplace harassment

I was forced to quit my job due to ongoing harassment from a manager. After speaking to HR, I was told my concerns were unfounded and that I should look for “other opportunities”. I lost a bonus as well as my extensive benefits. Do I have any recourse?

• Workplace harassment: Employers have a legal obligation to provide a safe and harassment-free work environment for all employees. Once presented with a complaint by an employee, an employer must investigate and resolve the situation. Employees cannot be penalized or terminated for voicing complaints. A resignation as a result of a failure to act by an employer is considered a constructive dismissal.

A refusal to accommodate by the employer

After being diagnosed with arthritis, I spoke to my boss about possible accommodation. He refused these requests. I’ve since received negative criticisms regarding my performance. I’m worried I will lose my job. What can I do?

• A duty to accommodate employees: Employees who require accommodations in the workplace must provide their employers with the necessary restrictions from their treating doctors. Employers have a duty to accommodate up until the point of undue hardship. A refusal to accommodate an employee’s medical condition is considered a human rights violation.

Employment Rights Rapid Fire

• Employees take sick leave: Employees with the support of a treating doctor are able to take sick leave for as long as necessary and cannot be penalized or terminated.
• Employer right to termination: Despite a denial of disability benefits, employers do not have the ability to terminate an employee for taking a medical leave.
• Automatic right to implement temporary layoffs: Employers do not have an automatic right to implement temporary layoffs. Employers must receive consent from an employee, typically in an employment contract.
• Entitled to any outstanding overtime pay: Employees are entitled to outstanding and accrued overtime pay upon termination. Employees who receive overtime pay regularly should ensure this is included in their severance package.
• Employer refuses to pay severance: Employment law dictates an employer must pay severance upon termination.
• Forced to resign or retire: A resignation or retirement must be voluntary and cannot be forced upon an employee. A forced resignation is considered a termination of employment.

NEXT EPISODE: Employment Law Show S8 E04 – 5 Key questions about Constructive DIsmissal

PREVIOUS EPISODE: Employment Law Show S8 E02 – Quick guide to social media in the workplace