Constructive dismissal – True/False | Employment Law Show TV – S7 E08

Episode Summary

CONSTRUCTIVE DISMISSAL TRUE OR FALSE, increased workload, forced to retire, and more on Season 7 Episode 08 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, British Columbia, and Alberta, on the only employment law show on both TV and radio in Canada.

Episode Notes

Medical accommodation refused by boss

I worked the same shift for years and was happy with it. I was recently off work due to a medical condition. Upon my return, I was told I had to take different shifts by my doctor. This request was refused. What can I do?

• ACcommodating a medical condition: Employees that have the support of their doctor and have provided a doctor’s note to their employers must be accommodated in the workplace. Employers have an obligation to accommodate an employee’s medical conditions and restrictions and a failure to do so is considered a violation of an employee’s human rights.

Layoffs as a company is bought

The manufacturing company I work for was bought out. There are rumours that severance packages and layoffs are on the way. What am I owed after 5.5 years as an executive assistant?

Severance pay for employees: Employees are owed severance pay if terminated without cause as a result of the purchase of a company. Employers that have sold the company owe their previous employees adequate severance pay. If an employee is hired on by the new owner, previous years of service should and must be acknowledged. In the event a termination does take place by the new owner later on in employment, the purchaser would be responsible for severance pay.

LEARN MORE
• Severance in Alberta
• Severance pay in Ontario
• Severance entitlements in B.C.

Forced to retire by boss

I’ve been on the receiving end of many comments from co-workers and a manager about my impending retirement. I have no plans to retire in the immediate future. Can I be forced out of my job?

• Pressured to resign or retire: Employees cannot be pushed or pressured to retire or resign. In most provinces across Canada, there is no mandatory age for retirement. It is completely inappropriate for employers to suggest employees should retire or imply an employee has aged out. This could be considered discriminatory and a human rights violation. Resignation and retirement must be completely voluntary.

Constructive dismissal – True/False

• When does constructive dismissal occur: A constructive dismissal occurs if a major change to the terms of employment is implemented without the consent of an employee. Employees do not have to accept a major change and can treat their employment as terminated.
  
• Reduction in pay: A major reduction in pay as a result of the financial difficulties of the employer is still considered a constructive dismissal. Employers cannot impose major pay reductions without an employee’s consent. Typically a pay cut of over ten percent would lead to a dismissal.
• Toxic work environments and harassment: Employers are obligated to investigate all complaints of harassment and bullying within the workplace. A poisoned work environment can make it virtually impossible for employees to continue to work. Employees should ensure all incidents of harassment are documented.
• Accepting a temporary layoff: Employees do not have to accept a temporary layoff despite the reason behind the layoff. A layoff is considered a significant change due to the major reduction in pay and hours. Employees that have signed an employment contract to be placed on a layoff should be mindful of their previous acceptance.
• Resigning after a change: Employees are within their rights to refuse a major change to their jobs but before resigning from their position, should speak to an employment lawyer. It is important employees take the proper steps in order to preserve the actual constructive dismissal and their rights.

Fired due to sick leave

After being diagnosed with cancer and then catching COVID-19, my daughter had to take time off work. Her employer is now trying to fire her as a result of spending too much time away from her job.

• Job protection after an illness: Employees cannot be penalized for taking sick or medical leave. Employees are within their rights to take as much time off as necessary in order to recover and with the support of their doctor. Terminating an employee due to illness or a disability is considered a human rights violation and it is illegal.

Reduced pay due despite increased workload

Due to significant understaffing in the accounting department, I am expected to help fulfill duties that are not part of my job. Failure to do so will lead to a wage reduction or lack of pay. Can they do this?

• Reduction in pay threatened by an employer: Employers cannot withhold an employee’s pay in any circumstances regardless of an employee’s performance and efficiency. Employers are also not permitted to implement major changes to the terms of employment, such as an increasing workload. Employees who no longer work in the same position they did previously due to changes, can consider their employment as constructively dismissed.

Independent contractor and severance pay

My father worked as a painter for 30 years. He was let go last year without explanation or severance pay. They said he was an independent contractor. Is he not entitled to severance?

• Misclassifying employees and contractors: Many individuals are incorrectly classified as independent contractors when they are in fact, employees. Many misclassified employees are not given the rights they are legally entitled to, such as vacation pay, overtime, severance pay, etc. Misclassified employees typically do not have the ability to set their schedule and wages and work solely for a specific employer. Ultimately employment law determines whether or not an individual is an employee or contractor.

NEXT EPISODE: Employment Law Show S7 E09 – 5 common employment law myths

PREVIOUS EPISODE: Employment Law Show S7 E07 – 5 Things employees should know about Medical Leave