Constructive dismissal during COVID-19 | Employment Law Show TV – S5 E9

Episode Summary

CONSTRUCTIVE DISMISSAL DURING COVID-19, refusal to accommodate a disability, severance after a demotion, signing a resignation, and more on Season 5 Episode 9 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

Reduction in pay due to regional shift

I’ve been in a sales role for over 5 years and making 100% commission. I continued working during the pandemic but I was given a different region by my employer that isn’t successful. What are my rights?

Despite no actual change to the structure of compensation, this situation will lead to a reduction in pay for the employee and can be considered a constructive dismissal.

Segment starts at 2:22

CALL: Contract worker laid off due to COVID-19

For the past 12 years, I have worked for a business that does contract work for a communications company. Many of us were laid off due to COVID-19. There is a rumor that we will be permanently let go. What are my rights?

If an employee is laid off temporarily it is not technically legal and can be treated as termination and an employee can choose to seek severance.

Learn More
Independent Contract Workers
Temporary Layoffs

Segment starts at 6:24

Refusal to accommodate and disability denial

I have been suffering physical ailments brought on by growing stress and anxiety, to the point where my doctor says I can no longer work. After the insurance company denied my long-term disability claim, I asked my employer to lighten my work duties but was refused. They say if I can’t work, I have to resign. Can you help me?

If an individual has their doctor’s support and is told they are unable to work, the disability insurer does not have the authority to force them back to work. Contacting a disability lawyer in this situation would be vital. Employees are also allowed to take medical leave with their doctor’s support and an employer has to accommodate their employee.

Segment starts at 8:46

Constructive Dismissal during COVID-19

1️⃣ Can you explain what a Constructive Dismissal is?

A constructive dismissal is when an employee undergoes a change in terms of their employment and an employee chooses not to accept these changes.

Segment starts at 13:18

2️⃣ What are the signs that a Constructive Dismissal is taking place?

Every change will not result in a constructive dismissal i.e. small changes. Any significant changes to employment such as more than a ten percent decrease in compensation are indications of constructive dismissal.

Segment starts at 14:50

3️⃣ Can you get severance if changes are made to your job due to COVID-19? Does the pandemic change anything?

The pandemic has not changed anything significant in terms of employment law and severance entitlements. Employees still have a right to the job that they had prior to the pandemic.

Segment starts at 15:57

4️⃣ What happens if somebody chooses to continue working after a significant change to their job?

An employee who chooses to accept significant changes to their employment such as hours or pay can be seen as accepting the new terms as a permanent change. The employer also now has the right to propose changes to an employee’s terms of employment in the future.

Segment starts at 16:45

5️⃣ If somebody thinks they have been constructively dismissed, should they quit immediately and then seek severance pay?

It is important to speak with an employment lawyer before resigning in order to properly assess the situation and what an employee could be entitled to.

Segment starts at 19:05

CALL: Signing resignation agreement

A local restaurant is changing ownership. The current owners that are exiting from the business want their entire staff to sign resignation letters before the new owners take over. What are their rights when they don’t know what they’re signing?

There is no such thing as a resignation letter, an employee cannot be forced to resign. Employers in this situation are trying to avoid paying severance to employees.

Segment starts at 20:09

CALL: Severance after a demotion

After 14 years as a driver, I was shifted to a management position at the company. I’ve been in that role for a year now. They said I could go back to driving but would lose my seniority. If I am let go, how would my severance be calculated?

Seniority cannot be lost in terms of severance entitlements. The longer the term of employment an employee has, the more significant the severance entitlements will be.

Segment starts at 23:57

Withholding severance pay

My wife was fired this week after almost 2 years with a company. They refused to release her two weeks’ pay unless she signed the termination papers before she left the meeting, which she did. Was she owed more? She works in an extremely niche industry, where jobs are scarce.

Employers cannot withhold severance pay to former employees and the severance entitlements cannot be conditional. It is important not to sign termination agreements before contacting an employment lawyer.

Segment starts at 26:03

NEXT EPISODE: Employment Law Show S5 E10 – Rights of Older Employees During COVID-19

PREVIOUS EPISODE: Employment Law Show S5 E8 – Lost Your Job Due to COVID-19 and What You Need to Know