The Employment Law Show

Common myths about terminations | Employment Law Show TV – S7 E18

Episode Summary

COMMON MYTHS ABOUT TERMINATIONS, forced into a new role, put on probation, and more on Season 7 Episode 18 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 and British Columbia, on the only employment law show on both TV and radio in Canada.

Episode Notes

Job offer rescinded by a new employer

I was considering two job offers and ultimately decided to accept one, and declined the other. Before I was about to start, the job offer was withdrawn. I’m now in a difficult position. What are my options?

  • Employee rights before starting a new job: Employees might be owed severance even if they have not begun a new position. Individuals that lose something as a result of accepting a new position, such as a current stable income, or another opportunity, are owed compensation. Employers cannot simply withdraw a job offer without possible consequences.

Severance for a retail employee

I was terminated, effective immediately after 7.5 years in a retail sales position. I was only offered about 10 weeks in severance pay and benefits. Is this a good deal?

  • Severance packages for terminated employees: Employees often mistakenly believe they are owed severance pay at a calculation of a week per year of service. In reality, severance pay for retail employees is calculated at the same rate as other positions. Severance will be based on an employee’s age, years of service as well as their position. Severance for older employees will typically be more in order to account for difficulty finding future employment.

No severance is offered in a large layoff

I was working at a manufacturing company for almost three years. Unfortunately, I was part of a large layoff due to cuts. My employer informed us we will not receive severance as they are struggling financially. Is this legal?

  • Rights in a mass layoff: Employees are still owed severance pay despite being part of a mass layoff. There are no exemptions for employers struggling financially. Business closures or shutdowns are also not considered exemptions from employment law. Employers that have declared bankruptcy will not owe severance to employees who have been terminated.

Common myths about terminations

  • Firing an employee without a legitimate reason: Employers are within their rights to terminate an employee for any reason, or without a reason. Employees mistakenly believe they cannot be let go without a legitimate reason. This is factually untrue. Employers must, however, offer adequate severance upon termination.
  • Let go “for cause” due to mistakes or simple errors: It is very difficult to terminate an employee “for cause”. Termination for cause can only occur if an employee has exhibited serious misconduct, such as theft or fraud. Employers must be able to show a progression in disciplinary action and prove there are no alternatives other than termination available.
  • A minimum amount of severance: A major misconception is that employees are only owed minimum severance entitlements upon termination. Employees are typically owed full severance entitlements, usually referred to as common law severance. Severance will be based on the age of an employee, their years of service and position.
  • Employees on a “contract” are not entitled to severance: Employees on a fixed-term contract would be owed severance pay for the balance of the contract if let go before the end date. It is very rare for an individual to truly be an independent contractor, as most are misclassified and are actually employees.
  • Short-service employee’s rights: Short-service employees arguably can be owed disproportionately more severance pay than a longer-service employee. Employment law understands the difficulty of finding future employment for those let go after a short amount of time.

No formal employment agreement

I’ve been employed for over 3 months now in a new company. I was never given a formal employment contract or signed anything. Should I ask HR for an agreement to sign?

  • Employment contracts and employee rights: Formal employment contracts protect the interests of an employer, not an employee. Employment contracts can limit the rights of an employee in regard to severance pay, non-competition clauses, layoffs, etc. It is far more beneficial for an employee to have a verbal agreement. Without a formal agreement, employees have the full protection of employment law.

Forced to accept a new role at the company

After 10 years of employment, I’m being forced into a new role. If I don’t accept, I’ll likely be laid off. Co-workers in similar positions have been offered 22 weeks’ severance. What should I expect in a package?

  • Changes made to your job: Employers do not have the ability to impose major changes to an employee’s job without their permission. A significant change can take the form of a drastic reduction in hours or pay, a demotion, etc. A change that has been imposed without consent can lead to constructive dismissal, and employees would be able to pursue their severance entitlements. Before accepting an initial severance offer, employees should first seek legal advice.

Put on probation due to performance issues

After I failed to meet a project deadline, my manager suggested that I could be put on probation. Can you be placed on probation, years after you were initially hired?

  • Performance management and discipline: Employees cannot be put on probation as a disciplinary measure. Employees that have been let go while on probation years after employment, they will still be owed severance pay. Probation periods even at the start of employment, are not automatic and must be consented to.

Employer refuses medical accommodations

My doctor has given me the required accommodations for my return to work after my insurance company forced me off my long-term disability benefits. When I told my employer, he said I should consider other employment.

  • A duty to accommodate: Employers have a legal obligation to accommodate an employee’s medical condition up until the point of undue hardship. Employers that refuse to accommodate an employee’s illness or medical condition could face additional human rights damages.
  • Forced off of long-term disability: Employees that have their disability benefits cut off while still unable to work should contact a disability lawyer. Often insurance companies end disability benefits early despite the ongoing support of a treating doctor.

NEXT EPISODE: Employment Law Show S7 E19 – 5 common employment law terms

PREVIOUS EPISODE: Employment Law Show S7 E17 – Rights for older employees true/false

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