What you need to know about Performance Plans | Employment Law Show TV – S8 E15

Episode Summary

WHAT YOU NEED TO KNOW ABOUT PERFORMANCE PLANS, accommodations refused by employer, forced to relocate by the boss and more on Season 8 Episode 15 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 about employment law in Alberta, Ontario and British Columbia, on the only employment law show on both TV and radio in Canada.

Episode Notes

Let go due to discriminatory reasons

I believe I was let go from my job due to my age. Over the years I’ve heard passing comments about my age, and I’m one of the oldest in my department. There was no legitimate reason given for my termination. What can I do?

• Terminations without cause: Employers are permitted to terminate an employee without cause for any reason and at any point. Terminations cannot be for discriminatory reasons, however, such as age, gender, religion, etc. In most provinces, there is no mandatory age of retirement in Canada. Employees are not only owed severance pay but could potentially be owed additional human rights damages.
  

Let go due to lack of profits

I worked for the same company for about 7 years in multiple divisions. I was eventually let go as my department was not making a profit. I was offered 6 weeks of severance. I’m 52 years old and in management.

• Financial difficulties of employer: Employees are still owed severance pay if they have been let go, despite the potential financial difficulties of an employer. Severance is based on an employee’s position, age, and years of service. All elements of compensation must be included in a severance package.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Accommodations refused by the employer

I worked for 3 years on modified duties before my doctor advised me to take a leave. While on sick leave I was let go and told it was due to performance issues. My doctor had ordered some accommodations, but my employer did not permit it.

• Employees with a medical condition and on leave: Employers must provide accommodations at the workplace for employees with a medical condition and limitations. A refusal to accommodate an employee who is unable to work is considered a human rights violation. Employees must provide their employers with the necessary documentation from their doctors to request accommodations.

Entitlements when labelled a contractor

I worked exclusively for a construction company as a project coordinator for 7 years. I was told there was not enough work and was let go. I’m unsure if I’m owed anything as I was told I’m a contractor.

• Misclassified by an employer: Employers ultimately do not determine whether or not an individual is an employee or an independent contractor. Individuals unsure of their rights and classification should question the level of control they have over their jobs; the equipment that is provided, exclusivity for a sole employer, etc. Misclassified employees typically miss out on vital employee rights, such as severance pay upon termination.

What you need to know about Performance Plans

• Placed on a performance improvement plan: Employers are within their rights to place employees on a performance improvement plan. Performance plans must be implemented in good faith and legitimate.
  
• Follow implemented plans: Employees should follow implemented performance plans to the best of their ability. Criticisms and reviews employees feel are inaccurate should be refuted in writing.
• Change an employee’s compensation or pay: Employers can’t reduce an employee’s compensation as a result of poor performance. A major reduction in wages can lead to constructive dismissal. It is in an employer’s best interest to provide necessary training and support to those struggling in the workplace.
• Used to build a case for an eventual termination: Performance plans are often used by employers to build a case against an employee for a future termination for cause. Terminations for cause are difficult to prove and rarely effective due to performance issues.

Given an ultimatum to relocate by the employer

I have worked at my company for nearly 30 years. They are relocating to a new site nearly an hour away, and I do not drive. I was offered to relocate or leave with two weeks’ pay. As a 62-year-old employee in manufacturing, what are my options?

• Changes made by the employer: Employers cannot impose major changes to an employee’s position without their consent. While an employer can implement a relocation as long as it is not significant. Employees should consider if their commute increases substantially due to the relocation. This could potentially lead to a constructive dismissal.
  

Maternity leave is considered job abandonment

I have been on maternity leave for almost 9 months. My work continuously emails me, asking when I will return to work although I’ve repeatedly stated that I’m not yet ready. It has been implied if I do not return within the next month, they will consider it job abandonment. What can I do?

• Rights while on parental leave: All employees are entitled to maternity or parental leave. Parental leave is considered to be protected and employees cannot be penalized or let go as a result. Employers must allow employees to return to the same position before taking leave.

Employee Rights

• Entitled to overtime pay: Some positions in the workplace are exempt from overtime pay, such as managers. Many service workers or professionals are also exempt from overtime. Employees who are entitled to overtime cannot be refused wages by their employer.
• Owed severance years after they have been let go: Employees have up to two years after termination to pursue their severance entitlements.
• A good reason to fire employees: Employers are permitted to terminate employees for any reason as long as severance is paid, or due to a discriminatory reason.
• Extend probation period: Legitimate probation periods typically last for three months. Any time past the initial period is considered meaningless.
• Record conversations in the workplace: Employees can record conversations in the workplace if they are a part of it. Employees cannot record their co-workers or peers conversing.
• Implement temporary layoffs: In most cases, employers cannot implement temporary layoffs. Employers can place an employee on a temporary layoff if it is a term agreed upon in an employment contract, or if they have been placed on a layoff in the past.
• Resign without providing notice: Typically employees are required to provide notice of resignation. The amount of notice necessary is usually included in an employment contract.

PREVIOUS EPISODE: Employment Law Show S8 E14 – Times when an employment lawyer can help