Employment Law Show 640 Toronto – S10 E10

Episode Summary

How to respond to a layoff during COVID-19, being laid off or put on an unpaid leave due to vaccination status, and more on Season 10 Episode 10 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 was recently let go due to my vaccine status, with no compensation. About a year ago I was recruited from another company and was convinced to leave after 10 years with them. Am I owed severance? If so, how much?

If you are let go because of your employer’s vaccine policy, and there is no government mandate in place, you are still owed severance. The question is, how much severance are you owed? When you’re recruited from another job, and induced to leave for another job, that is called inducement. That means that your employer has to pay you for your total years of service – at both companies, including the previous company. That makes you an eleven-year employee, and the amount of severance you are owed should reflect that time. That means you’re likely owed 12 months’ pay for one year’s service at your last employer.

I work at a bank and my position is being eliminated. I was given the option of taking a different role with a pay cut or taking a job at a branch an hour away. What should I do?

You actually have a third option, and it may be the option that makes the most sense. Instead, you have the option to treat this as a termination, also known as a constructive dismissal. Your employer is changing the terms of your employment, by forcing you to choose between a pay cut or a distant relocation. Since you worked there a long time, you’ll most likely be owed one years’ pay in severance. This is a reminder that you usually have the right and the option to treat a situation like this as a termination, as a constructive dismissal, and get your severance.

I was laid off in April 2020, and I still have benefits. What is my classification as an employee after 20 months?

The law says you have two options. Option one: you continue to wait and see if they call you back to work. Option two: you can treat this as a termination and get severance. You have to decide if you are willing to keep waiting, and if so, for how long? It could be a long time before they call you back. If you choose to treat your employment as termination, you can get your severance and move on. Since you’ve worked for your employer for over six years, you could be owed as much as eight or nine months’ pay.

I was placed on an unpaid leave in October due to my vaccination status. My employer hasn’t said if they will bring me back. What are my options?

There is no way of knowing how long you might be waiting to be called back. The pandemic could go on for two more years, and even when it’s over, they could decide not to bring you back. The other option you have is to treat the unpaid leave as a termination, and they would be required to pay you severance. That may be your best option. Since you’ve worked there for 20 years, you could be owed about 18 months’ pay.

I own a small plumbing company. I had a verbal agreement with an employee that I would help him get his license if he continued to work for me. He stopped showing up to work, so I canceled his registration. Now he’s upset. What can I do?

You had an agreement with your employee, and he didn’t meet his end of the bargain, so you do not have to meet yours. Since there was nothing in writing, it’s going to be hard for him to prove that there was an agreement if he wants to pursue anything. But there is an important lesson here for you, and that is that next time you have an agreement with someone, you need to put it in writing. In terms of the employee’s employment status, I think at this point you can consider him to have resigned – unless you want to rehire him at some point. If you want to consider him resigned you have to issue a record of employment and make it clear that he’s resigned. Give him the record of employment that says he’s resigned.

I’m a non-unionized, part-time municipal employee and I have been on unpaid leave since January 1^st. How long do I have to claim a constructive dismissal or wrongful dismissal?

You have two years from the moment the leave started to claim constructive dismissal or wrongful dismissal. If the leave started in January 2022, you would have until January of 2024. The reality is that your employer is unlikely to change their mind about vaccination status in the next couple of months, so you may not want to wait to be called back to work. So you can pursue a claim for constructive dismissal now, instead of waiting two years.

I’ve been working at a car wash and auto detailing center for 17 years. Yesterday I didn’t show up to work due to depression. When I called my boss, he said don’t bother coming back. What should I do?

It’s important that your next step is to confirm with your employer that he said there is no work for you. Send him a text message and confirm in writing that you were sick yesterday and didn’t show up, but that you contacted him after and he told you he hired new people and that he doesn’t have any work for you. Once you do that, now the situation can be classified as a termination, and he owes you severance. After 17 years you could be looking at as much as 18 months’ pay. But the critical part here is that you get the situation straight in writing and confirm what was actually said.

I have a medical condition and received a letter of exemption for the vaccine. My employer is suggesting I get the vaccine anyway. What can I do?

Since you’re part of a union, you have to talk to your union. Your only option is to get the advice and support of your union. They are the only ones who can advise you. They are the only ones who can pursue this matter for you if they decide to pursue it.

LEARN MORE
• Mandatory vaccinations and rights for Unionized Employees

Can my employer fire me or put me on unpaid leave I don’t get vaccinated?

The real question is not, can they do it? The real question is what happens if they do? Because you can’t stop your employer from firing you or putting you on unpaid leave. It doesn’t matter if it is illegal to fire someone or not. You can’t stop that from happening. But if your employer puts you on unpaid leave or lets you go for not getting vaccinated, you are owed compensation. If you lose your job, or if you’re put on unpaid leave –  that’s a termination – and you’re owed severance. That severance can be as much as 24 months’ pay.

I just received notice that our business has been sold to another company. No one has told me If I still have a job. Can I get severance?

At some point, you will find out if you still have a job, but until that happens you need to continue working. Eventually, you’ll find out if you have a job with the buyer and whether it’s on the same terms. If you are out of a job because of the sale of the business, or if you’re offered a job on very different terms, you will be owed severance. The seller has to pay you severance. If you continue working with the buyer then your employment continues.

WATCH MORE
Employee Rights When a Business Is Sold

I work in software sales, and I get paid a commission. My targets and quotas have been increased. I expect that my compensation is going to take a big hit. What do I do?

This situation sounds like it is a significant change in terms of employment. Your employer may not be directly reducing your pay, but they’re doing something where the net effect of it is that you are making less money. Anytime an employee’s compensation is affected, as long as it’s more than 10% or so, you’re looking at a constructive dismissal, even if it’s not a direct pay cut. You have the option to accept this, or you can treat it as a termination and pursue your severance.