Employment Law Show 640 Toronto – S10 E12

Episode Summary

Defining a wrongful dismissal, pursuing constructive dismissal, demotions and more on Season 10 Episode 12 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, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, and more.

Listen to the Episode

Episode Notes

I worked in the aerospace industry and worked my way up for over a decade. I was promoted to a management position. A month ago I was demoted. What are my rights?

It is important for employees in Ontario to remember that an employer cannot impose changes to the terms of employment without an employee’s consent. Employees who are unsure if they wish to stay in their position should consider their options and not waste time. Employees should speak to an employment lawyer before making any fundamental decisions or resigning from their position.

I’m a server at a restaurant and we have a tipping pool. A lot of the time the tips don’t make it to the kitchen staff. Is this legal?

Under the Employment Standards Act, there are provisions in which employee tips are collected and redistributed. Employees that are concerned that rules are not being followed can contact the Ministry of Labour.

I’m an essential worker and at times I have to deal with people who are can be very abusive. Is it up to my employer to protect me or should I set my own boundaries?

In some professions, there is a certain level of stressful situations that are unavoidable. Employees should speak to their employer in writing if the behaviour they are dealing with is negatively influencing their health. Employees who feel their employers are not adequately resolving their complaints can file a complaint with the Ministry of Labour.

I worked for my employer for 5 years and took maternity leave. I was let go after 4 months into leave due to restructuring. What can I do?

Employees that are terminated during their maternity leave or as a result of pregnancy are often owed additional severance entitlements. Employers should be wary of terminating employees on parental leave or as a result of pregnancy as they could face additional damages.

What is wrongful dismissal?

A wrongful dismissal occurs when an employer has failed to give an employee adequate severance pay upon termination. Employees who are unsure if they have been wrongfully dismissed should speak to an employment lawyer before agreeing to a severance package.

Are wrongful dismissal lawsuits difficult to resolve?

In the vast majority of vases, wrongful dismissal lawsuits are resolved in a matter of months, and at times even weeks. Most wrongful dismissal lawsuits do not lead to court and are resolved quickly.

Why are you unable to pursue further legal action after filing a claim with the Ministry of Labour regarding severance?

Employees are always able to seek legal advice however a claim with the Ministry of Labour prevents an employee from seeking external legal aid. It is important to remember that for employees who have just begun a claim with the Ministry but there has been no investigation, a claim can be pulled with the help of an employment lawyer.

I’ve been employed for 12 years but I was just told the business is being shut down and I’ve only been offered 8 weeks severance. Do I have any recourse?

Small business owners and employers incorrectly assume that statutory severance is the only entitlement available to employees. It is important to remember that employees are owed their full common law severance entitlements, which are based on the age of an employee, the length of employment as well as an employee’s position.

Have you been constructively dismissed if your salary has changed?

A major change in the compensation of an employee can result in constructive dismissal in Ontario. A minor change, such as less than 10 percent of a reduction in salary, might not result in a constructive dismissal. Employees should speak to an employment lawyer before resigning or assuming they have been constructively dismissed.

My work environment has become poisoned and my boss is not doing anything about it. Is this a constructive dismissal?

It is not common for employees to pursue constructive dismissal due to a toxic work environment. Employees have to be able to show that the proper steps and procedures have been taken to file complaints and that their employer has not resolved the issue. It is not enough for employees to simply have a bad relationship with an employer or co-worker to be able to pursue constructive dismissal.

I have been temporarily laid off. Can I pursue constructive dismissal?

Many employees have been laid off as a result of the pandemic. Unless an employee has consented to a layoff, being temporarily laid off by an employer is considered termination and an employee can seek their severance entitlements. There is no set time in which an employee has to be on a layoff in order to pursue constructive dismissal.