Duty to accommodate – True or False | Employment Law Show TV – S7 E04

Episode Summary

DUTY TO ACCOMMODATE TRUE OR FALSE, wage reductions, working from home and more on Season 7 Episode 04 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

Refused overtime pay by the employer

For over a year I worked consistent overtime hours in order to help out my boss. My employer still refuses to pay me overtime but expects me to work it anyway. What are my options?

• Overtime pay refused by boss: Employers cannot refuse to pay employees who have worked overtime hours. Employees are within their rights to file a complaint if their employer refuses to compensate them with adequate wages. Financial difficulties is not considered a reasonable excuse for employers to refuse to pay employees.
• Termination as a result of refused wages: Employees can choose to treat their lack of adequate wages as constructive dismissal and pursue their severance entitlements.

Major reduction in wages due to new contract

My company had a contract with another distributor. After 8 years, my contract has now changed, and I’ve lost 30-40% in wages. Despite this reduction, they’re still hiring for more drivers. What are my options?

• Constructive dismissal as a result of wage reduction: An employer does not have the right to implement a pay cut of more than 10% without an employee’s consent. A major change, such as a drop in wages, can lead to constructive dismissal and employees can consider their employment terminated. Employees are within their rights to accept a change if they wish, however it does allow employers to implement future changes.

No longer able to work from home

I was permitted to work from home during most of the pandemic. I’ve since undergone knee surgery and now I’m hearing we’ll be called back to the office soon. I’m not able to travel as I’m in recovery. Can I request to remain at home?

• Working from home: Generally, employees that were working from home as a result of the pandemic can be requested to return to the office by their employer. Employees who refuse to return to work can be seen as a resignation.
• Modified work arrangement due to health: An employee with a medical condition or restrictions that is unable to return to the workplace must give their employer a doctor’s note. A refusal to accommodate can be considered a human rights violation.

Learn more about employee rights when employers end remote work and recall staff in provinces like Ontario, Alberta and British Columbia.

Duty to accommodate – True or False

• A duty to accommodate definition: A duty to accommodate entails an employer must accommodate an employee in certain situations. Employees must be accommodated if they have a medical condition and necessary restrictions in the workplace as a result of this condition. Employers must also accommodate the childcare obligations of their employees.
  
• Supported documentation from treating doctors: In order to trigger a medical accommodation at the workplace, an employee has to provide their employer with a note or documentation from their treating medical team and doctor. An employer does not need to know the specifics of a medical condition but that there are accommodations required.
  
• Employers refusing to accommodate: Employers have to accommodate an employee, despite a possible inconvenience, up until the point of undue hardship. Employers that are unable to accommodate an employee in the event of extreme restrictions. Often employers do not want to go far enough in terms of accommodation.
• A possible human rights violation: It is considered a legal requirement for employers to accommodate their employees and a refusal to do so is considered a human rights violation. Employers might have to pay additional damages as well as back pay to employees, among other consequences.

Warnings before termination for cause

How many write-ups are required before a termination for cause is legitimate? Do these reports have to be spaced out at certain intervals or given consecutively?

• Performance management and discipline: Employers are within their rights to implement performance management and disciplinary action. Employers would have to implement 2 to 3 disciplinary measures and warnings before terminating an employee for cause. Employees that have been given less than two warnings cannot be accurately dismissed for cause.
• Terminations for cause due to performance: Terminations for cause are extremely difficult to prove and employers often mistakenly dismiss employees and it is considered a wrongful dismissal. Employees have to have exhibited serious misconduct and extensive disciplinary action must be taken.

No severance as the company is shutting down

After 12 years of working at a small company, I was notified that the company is shutting down. I don’t believe I’ll be receiving anything in severance. What am I owed?

• Severance as a company shuts down: There is a very big difference between an employer shutting down a company and filing for bankruptcy. Companies that have filed for bankruptcy will likely not be able to pay severance. Employers must give adequate severance pay to employees if the business has simply shut down.
  • • LEARN MORE ABOUT SEVERANCE
      Severance in ON
      Severance entitlements in BC
      Alberta severance packages

NEXT EPISODE: Employment Law Show S7 E05 – 5 fast facts about wrongful dismissal

PREVIOUS EPISODE: Employment Law Show S7 E03 – What you need to know about temporary layoffs