Common Myths about the Termination Process | Employment Law Show TV – S8 E10

Episode Summary

COMMON MYTHS ABOUT THE TERMINATION PROCESS, government advised severance pay, returning from maternity leave, and more on Season 8 Episode 10 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

Given ultimatum by employer while on disability leave

I’d been on disability leave for about six months when my employer requested I return to work within the next few weeks. If I wasn’t able to do so, I’d be let go. Can they do this?

• Pressured to return to work: Employers cannot determine when an employee is ready to return to work from disability or medical leave. Employees can take as much time as necessary to recover and receive treatment, and cannot be terminated due to the leave. An employee should consider their treating doctor’s advice regarding a return to work.
  

Labelled contractor and let go with no severance

I was labelled a contractor and worked solely for this employer for about a year. Despite promoting me from security guard to eventually operations manager, he terminated my employment with no warning. I was offered no severance and am still owed unpaid wages.

• Misclassification of employees: Employers often incorrectly classify individuals as contractors despite the fact they are employees. Misclassified employees miss out on vital employment rights, such as overtime pay, sick days, and particularly severance pay.
  • Learn More
    • Independent Contractors in Ontario

Government advice on severance pay

I was fired from a long-term job. When I contacted the government about my severance package, they said I was only owed a maximum of 8 weeks’ pay, not 24 months… Is there any type of situation that I’d be owed more than that?

• Minimum entitlements and full severance pay: Employees should not seek advice from the government regarding severance pay upon termination. Filing with the Ministry of Labour will only result in an employee receiving their minimum severance entitlements. Common law severance entitlements are 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

Employee accepts a major pay cut

I was a lead hand for my company for 14 years. The manager is now signalling a significant role change to coordinator, as well as a major pay cut. Can they do this, and do I have to accept it?

• Changes made to your job: Employers cannot impose major changes to the terms of an employee’s job, such as a demotion or reduction in pay, without consent. A significant change imposed by an employer can lead to constructive dismissal. While an employee cannot prevent an employer from imposing a change, it can be treated as a termination of employment.

Common Myths about the Termination Process

• A legitimate reason to terminate your employment: Employers do not need a legitimate reason for terminating an employee without cause. Employers are permitted to terminate an employee for any reason, as long as it is not discriminatory and severance is paid.
  
• Pressured to resign or retire: Employees cannot be pressured to resign or retire by their employers. A resignation must be voluntary. A pressured resignation is considered a termination of employment.
• Performance issues can lead to termination: Simple mistakes and performance issues cannot result in termination “for cause”. Terminations for cause are typically reserved for serious misconduct exhibited by an employee, such as fraud or assault.
• Severance signed and accepted as soon as possible: Employers often impose a deadline to accept a severance offer as a pressure tactic. Employees have up to two years after the initial date of termination to pursue their entitlements.

Returning from maternity leave to reduced hours

I’m currently on maternity leave but it will end in a matter of weeks. My employer has recently offered me another position with added responsibilities for the same pay, a much longer commute, and non-flexible hours. I was told I would be fired if I did not accept this offer. Do I have any options here?

• Maternity and parental leave: Employees must be able to return to the same position they had before taking maternity or parental leave. If the same job no longer exists, employees must try and find a comparable position for the returning employee. Employees cannot be penalized or terminated for taking a protected leave.
  

Less severance due to employer financial difficulties

I have worked for a company for 4 years in a sales position and was just let go. They’ve offered me 2 weeks of severance. When I pushed for more, HR stated the financial difficulties the company was experiencing made this impossible. Is this true?

• Factors influencing severance pay: Employees are owed severance pay regardless of their employer’s financial standings and difficulties. Employers cannot opt out of paying severance if an employee has been let go. Employers who have filed for bankruptcy will likely not have to honour severance obligations.

Rapid Fire Employment Rights True/False

• Forced to return to work after a certain number of sick days: Employers cannot force an employee to return to work if they are ill. Employees can take as many sick days as is necessary to recover despite the set number of paid sick days offered by their employer.
• File a complaint with the government on unpaid wages: Employees can and should seek legal advice from the government regarding unpaid compensation, such as salary, overtime pay, etc.
• Workplaces can implement unpaid training: Employees must always be paid at least minimum wage for training by their employers.
• Employers can schedule your vacation: Employers are within their rights to schedule a particular allotted time for employees to take their vacation. Once approved vacation cannot be revoked by an employer as it could lead to financial losses for the employee.
• Overtime pay can be refused: Employers cannot refuse to pay overtime to employees regardless of whether or not the extra time was approved.

PREVIOUS EPISODE: Employment Law Show S8 E09 – Fact or Fiction Maternity and Parental Leave