5 Myths about Termination for cause | Employment Law Show TV – S9 E09

Episode Summary

5 MYTHS ABOUT TERMINATION FOR CAUSE, an accident in a company vehicle, rights for contract employees and more on Season 9 Episode 09 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 TV and radio in Canada.

Episode Notes

The company relocates and adds to the commute

I’ve been employed for over 12 years. I took public transportation to work. However, my boss has informed me that they are relocating, which would significantly increase my commute. After speaking to my employer, they suggested I could resign. What can I do?

• Changes made to your job: Employers cannot change the terms of an employee’s job significantly. Due to a major change, employees can consider their employment as terminated. This would be a constructive dismissal, and employees would be owed severance pay. Employees can also consider asking their employer for potential accommodations to continue working.

Let go due to accident in company vehicle

I was just let go from my job. I joined the company 8 months ago. A few months into the job I was in a car accident in a company vehicle and sustained an injury. I’ve been told I was let go due to poor performance, and given a week of severance pay. Am I owed anything more?

• Performance issues and management: Employers cannot terminate employees due to a medical condition or injury; it is a human rights violation. Employees can be terminated without cause due to a mistake or error made in the workplace, and would still be owed severance despite the industry they work in, i.e. construction.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

The termination clause in an employment contract

Say you accept a job with a termination clause in the contract. If you are eventually let go, are your severance entitlements restricted due to the contract you signed?

• Employment contracts: Employers often include terminology in an employment contract to limit an employee’s future severance entitlements. As employees often sign contracts without seeking legal advice to secure a job, vital rights can be forfeited. Employees can and should speak to an employment lawyer to negotiate the terms agreed upon in a contract.

Deemed unfit due to medical condition and fired

I was diagnosed with arthritis, which was causing significant pain and stress. Unable to continue as I was, I sought help from a specialist. The doctor advised I only work a few days a week. When I told my employer, he said I was “unfit” and let me go.

• Human rights violation: Employees with a medical condition and recommended accommodations must be obliged by their employers. Employers cannot refuse accommodation requests unless they would cause undue hardship. Employers who are unable to accommodate an employee can permit employees to take a medical leave. Terminating an employee due to a medical condition is a human rights violation as well as a wrongful dismissal.

5 Myths about Termination for Cause

• A single mistake: Employees cannot be terminated “for cause” due to a simple mistake or error at the workplace. Employees can only be let go for cause due to serious misconduct, such as theft or assault.
  
• Behaviour outside of the workplace: Employee behaviour outside of the workplace can impact an employer’s business or a working relationship. Negative behaviour on an employee’s time can lead to discipline or termination. Employees should be wary of the content they post online on social media accounts.
• The choice to resign: Employees should keep in mind the difficulty of terminating an employee “for cause”. Often employers mistakenly terminate employees and ultimately still owe employees severance pay.
• Offer of severance pay: Employers do not have to offer severance if an employee was legitimately terminated for cause, however, justified terminations do not occur often. 
  
• Challenging the termination: Employers are responsible for proving an employee must be terminated “for cause”. This can be a very difficult process as very few circumstances would lead to termination for cause. Employees should speak to an employment lawyer if let go to determine their next steps.

Rights for “contract employees”

I worked as a financial analyst for 10 years on an indefinite contract. The company switched me to a 3-year fixed-term contract with no added benefits, then extended it for 2 more years. Now they’re terminating me without severance, claiming I’m a ‘contract employee.’ I’m almost 50.

• Fixed-term contracts: It is very difficult to dismiss an employee’s seniority. Employees are owed severance pay despite an employer’s assumption they are not based on a classification. Employment contracts that are repeatedly extended can become meaningless.

New owner issues employment contract

I’ve worked with my current employer for over 3 years. They recently closed, and a new company absorbed all employees. The new company issued contracts, changing job titles and duties while cutting benefits and vacation time. I’m not sure what my rights are.

• Changes made to employee’s position: Employees could lose the right to severance pay if their employer declared bankruptcy. However, the closure of a business does not mean employees are not entitled to severance. Employees hired by a new owner must be given the same job they had before the sale of the business. New owners who change the terms of employment for staff could owe the former employees severance.
  

Employee Rights

• Entitled to overtime pay: Although most employees are entitled to overtime pay, there are exceptions. Certain professions are exempt from overtime pay, such as doctors or lawyers. Managers are also typically exempt from overtime pay.
• Unsafe work: Employees can and should refuse unsafe work. Employees cannot be penalized for refusing unsafe working conditions.
• Advanced notice of termination: Employers must either provide advanced notice of termination or pay in lieu of notice.
  
• Taking a leave of absence: Employees are within their rights to take job-protected medical leave of absence and must be brought back to the same position.
• Bullying in the workplace: Employees cannot be penalized or terminated for filing a harassment complaint; this is illegal and considered a reprisal.
  

PREVIOUS EPISODE: Employment Law Show S9 E08 – Medical Leave: Quick Q&A