Employment Law Show 640 Toronto – S10 E03

Episode Summary

Terminations for cause, termination clauses, rights of independent contractors, and more on Season 10 Episode 03 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Toronto Employment Lawyer and partner Jon Pinkus, Associate at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto and the GTA on the Employment Law Show. Jon shatters myths and misconceptions about severance pay, terminations without and for cause, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, temporary layoffs and more.

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Episode Notes

I worked as an assistant manager at a pharmacy during the day. My manager quit recently and so I was told I had to work a night shift permanently, even though I only agreed to do so temporarily. What are my rights?

Employees do not have to accept significant changes to the terms of their employment and cannot be forced to do so by their employer. Employers have to have their employee’s consent in order to make substantial changes. Employees in this situation should and can pursue constructive dismissal. It is important for employees who have agreed to a temporary change in terms to do so in writing and make clear that the change can only be for a certain amount of time.

After two years as a production manager, I was terminated, however, my employment agreement contained a termination clause. Do I have any recourse?

Many termination clauses are not enforceable and are inaccurately drafted by employers. It is important for employees who have been terminated without adequate severance to contact an employment lawyer as soon as possible as there is a limitation period of two years after the date of termination to pursue severance pay.

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• Employment contracts and termination clauses

I’ve been on disability leave for almost two years now. I found a new job. How do I inform my former employer?

Ideally, employees should try and give their employers notice of resignation particularly if there is a provision included in their employment contract. employees who have no provision in their employment contract should notify their employer as soon as possible of their resignation.

Is there any protection in terms of how many hours a week I have to work as I’m self-employed?

Individuals who are self-employed are unfortunately not offered the protections of the Employment Standards Act which dictates over-time provisions and other employee rights. Limitations for self-employed workers can and should be imposed by themselves. It is important for individuals to determine whether or not they are truly self-employed or work for another entity and have been misclassified.

As an independent contractor working through an agency for another company, am I offered any protections under the Employment Standards Act? 

Individuals are often misclassified as independent contractors when they are in fact employees. Workers who are unsure of their title should question the level of control they have over their positions. Many misclassified employees are unable to set the hours and schedules of their work and compensation.

What is a termination for cause?

A termination for cause occurs when an employee has exhibited serious misconduct and an employer has no choice but to terminate. For cause terminations are rare and typically employers have to be able to prove an escalation of discipline regarding the terminated employee and have to be able to prove there were no alternatives to termination.  Employees who are terminated for cause are not offered severance pay.

How difficult is it to establish a termination for cause?

It is very difficult to prove terminations for cause and employers cannot use simple performance issues to establish just cause. Misconduct that is exhibited by employees has to be serious and significant, such as fraud or stealing. Isolated incidents and simple mistakes alone cannot lead to termination.

Are there instances in which an employee can receive severance if they have been fired for cause?

Employees who have been improperly accused of serious misconduct and terminated for cause could be entitled to severance pay. Employees who feel they have been improperly dismissed should contact an employment lawyer as soon as possible to pursue their rights.

How does an employee build a termination for cause case?

Employers and employees should keep written documentation of incidents and performance reviews if possible. Employees who feel they have been improperly accused or given inaccurate performance reviews should communicate their dissent in writing.