5 Key questions about constructive dismissal | Employment Law Show TV – S8 E04

Episode Summary

5 KEY QUESTIONS ABOUT CONSTRUCTIVE DISMISSAL, accommodations a work, working notice, and more on Season 8 Episode 04 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

Retirement notice period waived by the employer

I informed my employer it was my last year of work and I would retire. After a few weeks of training a new employee, my employer let me go and waived my notice. Can they do this?

• Let go before the notice period: Employees cannot be pressured to resign or retire by their employers. Employees who have given notice to their employers cannot be let go before the end of the notice period. If let go before a period of notice ends, employees are owed severance pay by their employers.

 Blamed for damaged equipment and let go

I was a delivery driver for 5 years and was laid off temporarily due to the pandemic. I was eventually called back to work. I was recently let go because my truck sustained some damage, but it wasn’t my fault.

• Terminated for cause: Employers cannot penalize or terminate employees for cause due to isolated accidents or errors. It is very difficult to terminate an employee for cause, despite a potential loss of business due to an employee’s sole mistake. Many employees who have been terminated for cause have been wrongfully dismissed.

Unattainable goals expected of employees

I work as a bill collector, and we have certain expectations every month. If we don’t meet our targets, we’re expected to work for free now and then. The goals are ultimately not attainable.

• Performance management: Employers are within their rights to implement performance management and discipline however it must be reasonable. Employees must voice their complaints in writing if a sales target or goal is unattainable. Employees cannot be forced to work unpaid by their employers; it is illegal.

Terminated despite ongoing modified duties

I was on modified duties at work, recommended by my doctor, and my employer initially agreed. However, I was later terminated, possibly due to my inability to perform certain tasks. Is this discrimination?

• Duty to accommodate: Employers must accommodate an employee’s medical condition. This obligation, if supported by a treating doctor, can mean reduced hours, assisting an employee with necessary tasks, etc. A failure to accommodate up until the point of undue hardship can be considered a human rights violation.

5 Key Questions About Constructive Dismissal

• What is a constructive dismissal: A constructive dismissal is not initiated by the employer but occurs when an employer decides to act in a way that prevents an employee from working. Constructive dismissals occur as a result of a breach of the terms of employment.
  
• Common examples of constructive dismissal: A common example of constructive dismissal is when a major element of employment changes, such as a relocation, or drastic reduction in pay. Ongoing workplace harassment can also lead to constructive dismissal if it is not resolved or investigated adequately.
• Working after a big change: Employees who continue to work after a major change has been implemented are considered to have accepted the change. Accepting a major change also permits an employer the right to implement a future change.
• Severance pay if you are constructively dismissed: Employees are within their rights to pursue their severance entitlements if they can establish a constructive dismissal. The same rules of a regular dismissal apply to severance under these circumstances.
• Resigning after a change has been made: Employees should seek advice from an employment lawyer if unsure of their next steps. Seeking legal advice should occur before a resignation.

Given working notice by the employer

I have been given a month’s working notice by my employer. I have been in a senior management position with this company for the past 6 years and am nearing my 60s. Is a month’s notice considered enough time to find a similar job?

• Working notice and severance: Employers are within their rights to provide an employee with working notice. In most cases, after a working notice period ends, additional severance pay is also owed. Severance will be based on an employee’s age, position, and years of service.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Promised a promotion by an employer

I was asked by my employer if I would be interested in a promotion. I had a verbal conversation, and I was promised a raise if I agreed to run this new project. It’s been 3 months now and I still don’t have a new contract and my pay remains the same. Is my employer legally bound to honour this promise?

• Promotions and verbal contracts: A verbal employment contract must be enforced, just like a written employment contract. It is difficult to illuminate the terms of a verbal contract as opposed to a written document. Employees should ensure there is written confirmation of a promised role or raise.

Rapid Fire Parental and Maternity Leave

• Inform a prospective employer if they are pregnant: Employees are not obligated to inform their employers if and when they are pregnant, and when they will be taking leave.
• Hire a temporary replacement: Employers are permitted to hire a replacement employee while a member of staff is on parental or maternity leave.
• Keep the replacement employee instead: Employers cannot decide to keep a replacement employee instead of taking back an employee returning from leave. Employees returning from a parental leave must be given the same position and pay.
• Let go while on maternity leave: Employees cannot be terminated due to taking a parental or maternity leave or for extending their leave.
• A human rights violation: Terminating an employee on a protected leave is considered to be a human rights violation. Employers can face severe legal consequences in addition to owing regular severance entitlements.
• Employee on parental leave: All employees are entitled to job protection while on parental leave. Parental leave also applies to employees who have decided to adopt.

NEXT EPISODE: Employment Law Show S8 E05 – Fact facts about Temporary Layoffs

PREVIOUS EPISODE: Employment Law Show S8 E03 – Fact or Fiction: Termination for cause