Duty to Accommodate in Canada | Employment Law Show TV – S5 E3

Episode Summary

DUTY TO ACCOMMODATE IN CANADA, returning from a layoff to reduced hours, fired for running a stop sign, and more on Season 5 Episode 3 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

Returned from layoff to part-time

I was brought back from a COVID-19 temporary layoff on a part-time basis. Before the pandemic I was full time. My employer says I will not be returned to full-time status. What are my rights?

An employee who worked full-time before a COVID-19 layoff must be brought back to that full-time position. The fact that they have been given part-time hours may trigger a constructive dismissal. The employee can then consider themselves to have been fired, and obtain severance from the employer.

WATCH MORE
• Constructive Dismissal | Employment Law Show – S3 E14
• COVID-19: Termination of Employment | Employment Law Show – S4 E26

Segment starts at 1:59

Fired for running stop sign

My friend was fired for cause after he allegedly ran a stop sign. Can he be fired without severance pay? He was a federally regulated employee.

A termination or dismissal for cause is reserved for the most serious workplace misconduct. While an employee should not run a stop sign with a company vehicle, that action alone does not constitute a “for cause” incident. The driver’s termination would therefore be one without cause, and severance would be owed.

WATCH MORE
Termination Without Cause | Employment Law Show – S4 E7

The fact that the individual was a federally regulated employee does not change the fact that he is owed a severance package. Employees governed by the Canada Labour Code are still entitled to common law severance pay, which could mean up to 24 months’ pay.

Segment starts at 5:15

Refused to sign new contract when recalled

I was fired after refusing to sign a new employment contract when I was called back to work. The contract wanted to move me to part-time. My boss said I had resigned.

Contrary to what their employer believes, the employee in this situation has not resigned. They were, in fact, terminated without cause. An employee has the right to refuse a new employment contract that makes negative changes to their job. The employer must provide the individual with severance pay, based on their hours as a full-time employee.

Had the employee accepted the new terms of employment (part-time work), and then been fired, their severance would have been based on their reduced hours of work.

READ MORE
• Severance pay for hourly employees in Ontario

Segment starts at 8:21

Duty to Accomodate in Canada

1️⃣ What is the duty to accommodate?

The duty to accommodate is an obligation an employer has to provide support to an employee in certain situations (medical condition, injury)

Segment starts at 12:37

2️⃣ When does an employee need to be accommodated?

Accommodation must occur when an employee provides medical support from their doctor.

Segment starts at 13:51

3️⃣ When does an employee NOT have the right to be accommodated?

Segment starts at 14:48

4️⃣ How far does an employer have to go to accommodate an employee?

An employer must accommodate an employee, even when accommodation proves difficult for the company

Segment starts at 16:16

5️⃣ My employer refuses to accommodate me. What should I do now?

If your employer refuses to accommodate you, it is time to contact our employment lawyers for assistance.

Segment starts at 18:45

Transferred with new contract

I am being transferred to another company involuntarily. More work, same pay. They are forcing me to accept a new employee handbook that mentions dismissal without severance. What should I do?

An employer may use a transfer as an excuse to update your employment contract. The new contract may contain a termination clause that limits your right to common law severance pay upon termination. An employee does not have to accept the terms of a new agreement.

Segment starts at 19:59

Fired on return from light duties

My wife was working light duties due to an injury. The day after she was given the all-clear to return to her full duties, she was fired due to “restructuring.” Is she owed anything?

An employee cannot be let go from their job because they were on a medical leave, or need accommodation at work. An employer who takes those steps is engaging in a human rights violation, which may result in financial damages for the employee.

Segment starts at 23:44

Overtime pay stopped

Can my employer stop paying overtime, even though I still need to work extra hours due to COVID-19?

Employees in a non-managerial role are entitled to overtime pay if they work extra hours. This applies even if the worker puts in overtime hours against the employer’s wishes. More importantly, a change like this would likely constitute a constructive dismissal.

READ MORE
• Overtime pay in B.C.
• Overtime pay in Ontario
• Alberta and overtime pay

Segment starts at 26:07

NEXT EPISODE: Employment Law Show S5 E4 – Dismissal For Cause in Canada

PREVIOUS EPISODE: Employment Law Show S5 E2 – Employment Agreements & COVID-19