Employment Law Show 640 Toronto – S10 E07

Episode Summary

Ultra-expensive terminations, what to do when you’re injured on the job, severance pay when a company closes, and more on Season 10 Episode 07 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto, the GTA, Hamilton, London, and across Ontario on the Employment Law Show. Lior shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, and more.

Listen to the Episode

Episode Notes

I’m a non-union hospital worker and I’m about to be let go for not getting vaccinated against COVID-19. Can they fire me and not give me any compensation?

The Ontario government decided to allow hospitals to operate during the pandemic without imposing vaccine mandates on them. That means if the hospitals decide that they want to let an employee go for not getting vaccinated, they have to pay them severance. This is because the hospitals have a choice, and they do not have to fire employees who are unvaccinated. That’s also true in any other industry where there is no government mandate to get the vaccine – if you lose your job, you are entitled to severance.

LEARN MORE
• Healthcare workers and vaccination policy

I worked for a company for six months, and I was let go without cause. I was offered three weeks’ pay – is that fair?

Based on the facts of your situation, you’re probably owed up to six months’ pay. Short-service employees are actually owed disproportionately more than long-service employees. That’s because one of the key factors in determining severance is how long it will take an employee to secure new employment. Just because an employee worked for a company for a short period of time, that doesn’t mean it won’t take several months to find a new job. If you lost your job, even if you were a short-service employee, contact our firm.

I own a small business, and business has slowed considerably during the pandemic. If I have to close the company, would I owe my employees severance?

If a business closes, you do owe severance to your employees. If there is no money to pay the employees, then severance just can’t be paid. But just because the business is no longer profitable, that does not mean there are no other sources of money. For example, a business may possess accounts receivables that are coming to you in the future, or own property that can be sold, and an employee can demand those assets be sold so that their severance entitlements can be paid.

LEARN MORE
• Employee Rights When a Company Closes

I’m a truck driver, and I fell at work. My doctor says the injury is permanent and ongoing, but my employer says it was caused by something else. WSIB has cut me off. What can I do?

If you are suffering from an injury that resulted from an incident at work, then the Workplace Safety and Insurance Board (WSIB) should be paying you on an ongoing basis. If WSIB cuts you off, then you have to make an appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT). However, if your doctor says you are able to go back to work with accommodation in a different role, your employer has to try to make that happen. If your employer refuses to accommodate you, then not only could you be entitled to severance at that point, you could be owed human rights damages as well.

My employer let me go because they say I don’t work fast enough. I have never had any complaints before. Do they have a right to do this?

An employer can let an employee go pretty much for any reason, as long as it is not discriminatory and severance is paid. However, the question is, in this situation, can your employer let you go without severance? The only time your employer would be able to do that is if they can prove that they’ve provided numerous warnings, that they’ve provided assistance and support to help you to improve, and that despite that, you are going out of your way to not do a good job. That is the only possible way an employer could even consider terminating you for cause, and even if that were the case, it is extremely difficult to do.

My boss is rude and demeaning to me, and it’s causing me to lose sleep. I’ve reported it to HR, but nothing was done. How do I make this harassment stop?

Since HR is not dealing with this issue, it’s time to deal with this externally and get you out of that toxic work environment. The first thing you need to do is document your correspondence with HR. Send them a follow-up email reiterating that you have asked for help.  Mention the specific dates that you requested assistance from HR, that you have explained the situation, and that they committed to deal with the issue. If nothing happens, follow up a second time. If still nothing happens, you need the help of an employment lawyer.

If the employer refuses to deal with the issue, they are refusing to meet their obligation to fix the situation. You can then consider that a constructive dismissal. If your employer creates a poisoned work environment or does not fix a poisoned work environment, that’s a significant breach of the terms of employment. You can treat that as a termination and get your severance.

Ultra-expensive terminations

#1) When the employer is struggling financially but still decides to let employees go because they did not vaccinate

Even if an employer is struggling financially, if you let an employee go that’s not vaccinated, you have to pay them severance. If that severance is going to put your business under, letting an employee go could cost you your business.

#2) When an employee asks about taking a disability leave or comes back from said disability leave

If an employer decided to let an employee go when they return from a disability leave, or they’re about to take a leave, not only do they owe the employee severance, but they may also end up having to pay the employee damages for a human rights violation. An employer cannot legally let someone go because they’re taking a disability leave, because they’re sick, because they need to be accommodated, or because they’re trying to come back from a disability leave.  That’s illegal.

LEARN MORE
• Return to Work and Long-term Disability FAQ

If an employee has the proper support from their doctor, you have to accommodate the employee and allow them to take a disability leave for as long as they need. When an employee is ready to come back to work, you have to make all reasonable efforts to bring them back, if possible. If the employee has limitations, they may require modified duties or hours, and an employer has to accommodate that as well. Not doing so could result in an extremely expensive termination.

#3) When an employee raises harassment allegations against a boss or a coworker

An employer cannot and should not let someone go because they’ve complained about harassment. Legally, an employer does have to take these harassment allegations and complaints very seriously. The employer must investigate, and that may even mean bringing an outside investigator to investigate the allegations made by the employee. Ultimately, an employer must do whatever they have to in order to rectify the issue and to make sure it stops. Ignoring a harassment complaint is illegal, problematic, and it can cost an employer a lot of money.

#4) Reducing an employee’s compensation or getting them to sign a new contract of employment

An employer might think that reducing an employee’s wages, or asking them to sign a new employment contract limiting the employee’s severance, is a clever way to save money or reduce the amount of severance owed to an employee when they let them go. However, not only is it not clever, but it could also be a costly mistake, resulting in additional bad faith damages or punitive damages paid out by the employer. That can be an ultra-expensive termination for an employer.

#5) Letting an employee go right before they’re due a large bonus or commission payment

An employer cannot let an employee go right before they’re due to be paid a large bonus or commission. The employee has earned that money, and the bonus or commission has to be paid, even if the employer lets them go before it’s due. This is another example of a bad faith situation that could result in tens of thousands of dollars in additional punitive damages owed to the employee by the employer, resulting in another ultra-expensive termination.

#6) When an employee makes inquiries about overtime pay or missing vacation pay and is let go as a result

Employees are allowed to make inquiries about overtime pay, minimum wage, vacation pay, or any other question related to their compensation. They’re even allowed to demand payment or ask why something was not paid out, and they cannot be punished in any way for doing so. An employer cannot legally punish an employee for asking questions about their legal entitlements. An employee who is punished for making such inquiries is the victim of a reprisal. When an employee is let go in that situation, they may be owed additional damages in the form of financial compensation because of that reprisal.

#7) When an employee announces a pregnancy or comes back from maternity leave or paternity leave

The law is clear: an employer cannot let someone go because they’re pregnant, because they’re taking maternity or parental leave (whether it’s a father or a mother), or because they want to take the full leave of 18 months. Not only would an employer that chooses to let someone go have to pay severance, but the employee would be owed significant, additional damages under the Human Rights Code, and under the Employment Standards Act (ESA).

LEARN MORE
• How long is a Maternity Leave in Ontario?

#8) If the employee is working on a fixed-term agreement that has not ended

If an employee signs a fixed-term agreement with an employer for a fixed period of time, and the employer wants to let the employee go after a certain amount of time, the employer must pay the employee the balance of the agreement. If an employee signs a three-year contract, and the employer decides to let them go after one year, the employee is owed the additional two years’ worth of compensation when they are let go.

If an employer wants to avoid a situation like this, all the employer has to do is have an employment agreement that has an early exit clause, or early exit provision. It would state the amount that would be paid to the employee if the employer has to let them go before the end of the fixed-term contract.

#9) When you let an employee go right before the holidays

There are a couple of things to consider with this kind of termination. First, if you let an employee go before the holidays, and it appears the termination was unduly harsh, you could owe the employee additional bad faith damages. Second, when you let someone go before the holidays, it could take the employee longer to secure a new position, and that could mean additional severance must be paid to the employee. Employers aren’t usually hiring around the holidays, or early in the new year, so it will be more challenging for the employee to find a new job, and because of that additional severance will have to be paid. So, letting someone go around the holidays is not only the wrong thing to do morally but also the wrong thing to do financially.