Employment Law Show 640 Toronto – S10 E20

Episode Summary

Employment agreements and important terms to watch out for, constructive dismissals, being let go when returning from a disability leave, and more on Season 10 Episode 20 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’ve worked at a restaurant for 3 years, and recently my employer stopped putting me on the schedule. What should I do?

This is a termination of employment. The employment relationship is simple. As an employee, you go to work, and your employer gives you work to do. If your employer doesn’t give you work and doesn’t pay you, they’ve terminated your employment. But they don’t get to avoid the consequences of a termination by simply not scheduling you. If your employer stops giving you work it’s exactly the same as if they’ve terminated your employment, which means you are owed severance. Based on the information you’ve provided you’re probably owed 4 months’ pay.

I’m hearing rumours that my employer is going to make our workweek only three or four days, instead of five days, and pay us only for the eight-hour days we work. Is that a constructive dismissal?

If your employer now reduces your pay to the tune of one day less a week or two days less a week, that is absolutely a constructive dismissal. It’s probably the most obvious type of constructive dismissal that you can have. If that were to happen, obviously you have several choices. You can accept it and continue working, and now you’re working three or four days. And if you do that, you’ve given them the right to do it again and reduce your hours even more. Option number two is you can treat it as a constructive dismissal leave with your severance. If that is what you decide to do, if that were to happen, call Samfiru Tumarkin LLP, and we’ll help you do that. It’s not complicated because this is a very straightforward constructive dismissal.

I’m a tradesman and I’ve been with the company for three years. I’ve been temporarily reassigned to a different position that is not remotely related to my job. How long until it would be considered a constructive dismissal?

If it’s clear that the new role is temporary, one of the things you can do is to write to your employer (email, text message, whatever you want) but in it say that they’ve assigned you this other job, and your understanding is that it’s only temporary, and that you are only accepting the role on a temporary basis and that you expect to be back to your regular job within three months, for example. That way, you can buy yourself some time. If those three months come and come and go and you’re still in that position you will have the power to claim constructive dismissal because essentially you only agreed to do it for a certain period of time.

I have worked for a bank for 12 years and recently went on long-term disability, and I was let go. They gave me a severance package with the option of collecting more over several months, with the condition that if I found a job they would stop paying me.

The issue here is not these conditions about finding another job. The issue here is the number of months. It’s common to have a condition that says that if you find another job they will pay you a portion of what is outstanding. The problem in your situation is twofold. Number one is the fact that you’re owed more than 36 weeks. You’re probably owed closer to a year, maybe even more if you have a medical issue. Number two is if they’re letting you go while you’re off on a disability leave, potentially this is a human rights issue if your termination had anything at all to do with your medical condition. Even if it was a legitimate termination you’re probably owed a year’s pay, not 36 weeks.

Can an employer put a clause in an employment agreement that says, ‘subject to change at any time’? Could they just use that to change your hours or pay?

If an employment agreement says, “Your hours are 9-5, but are subject to change at our discretion”, that absolutely gives them the power to change your hours. Any time they have the contract for the right to make changes, then they have that right. It’s important to be very wary about those situations and not to agree to it and just take the job.

I work for a union. If I have a disagreement and I don’t like the way they’re representing me, could I pay you to represent me?

Unfortunately, it has to be the union that represents you. Unionized employees have a collective agreement that the union negotiates, and that union members have no role in negotiating. Whatever the union says and negotiates is what applies. It’s very important to remember that a lawyer can never ever represent a unionized employee. It has to be the union.

I’ve been employed for the last three years through an agency. The agency is the one that pays me, but they said there’s no more work for me. Am I entitled to severance?

Even though you work through an agency, the law may consider you to be an employee of the actual company that you provide services to rather than the agency. That’s because the agency doesn’t do anything other than cut you a check, and they’re not even paying you with their own money. They get the money from the company. But either way, regardless of who your employer is, you are owed severance. You can’t lose your job and not get severance unless you are terminated for cause.

LEARN MORE
Employee vs. Independent Contractor Misclassification

I just started back at work on modified duties after being on disability for a few months, and the company let me go. They offered me 52 weeks’ pay after 23 years of employment as a production manager. I’m 62. Is that fair?

No, it’s not fair. First of all, you’re probably owed double that in terms of severance. So you are probably owed closer to 24 months’ pay.  But there’s another issue here. If you were off on disability, and you finally came back and then you’re let go, it certainly looks like you’re being let go because of the fact that you were off on disability. If that’s the case, that’s a human rights violation, and that’s illegal. That’s may not be what actually happened here, and it could be a coincidence, but it certainly looks bad. So, before we even talk about severance, we would want to understand why you were let go. It could be a human rights violation. Even if it’s not, you’re owed twice what you were offered for severance.

My employer let me go. I tried to negotiate my severance with them, and they said that it’s their policy not to pay more. Should I have my severance letter reviewed by your firm?

The good news is that your employer doesn’t decide how much you get. I don’t decide how much you get; the law does that for us. Because of that, if you’re legally owed more, it doesn’t matter what your employer’s policy is, you are going to get more.

Employment agreements and important terms to watch out for

#1) Why should people care about their employment agreement?

An employment agreement is one of the most important documents you will ever sign. We have tremendous employment laws in Ontario, but our employment laws also say that you have a right to give up your rights, and oftentimes you can give up rights you didn’t even know you had by signing an employment agreement.

#2) What is the most important term in an employment agreement?

The most important term that you really want to watch out for is the termination clause. Often an employment agreement these days will have a term that says what your employer is going to have to pay you if they ever let you go. If your agreement addresses the issue of termination it is almost always to try to limit your entitlements. An employment agreement can limit you to your absolute minimum entitlements and that can cost you tens of thousands of dollars, hundreds of thousands even it could be the difference between getting eight weeks’ severance and getting two years severance.

LEARN MORE
• Employment Contracts: What You Need to Know
• What should employees look for in an employment contract?

#3) Clauses that allow your employer to change your job or your compensation

Do not ever agree to an employment contract that says, ‘we have the discretion to change your job and change your pay’. In that case, for example, when you started a new job you could negotiate the salary of $65,000 in a specific role. But the agreement also could have a term that says, ‘we have a right to change your pay and to change your job’. Essentially you’d be agreeing to take a job where the employer pays you whatever they want and gives you whatever job they want.

#4) A non-competition agreement

Non-competition clauses are not always enforceable, but it’s always a problem if you sign a non-competition term because it could cause you problems down the road. If you are let go or you decide to leave your job it could limit your options when you’re seeking new employment.

WATCH TO LEARN MORE
Non-competition Clauses in Canada

#5) Any term that allows temporary layoffs

An employer does not have a right to put you on a temporary layoff unless you sign an employment agreement that gives them that power.

#6) Can your employer just change the employment agreement after you start working?

No. Generally speaking, an employer does not have a right to change the terms of your employment. Your employer can’t change your job, they can’t change your compensation, and they can’t change your hours of work.  But they can do that if your employment agreement gives them that power. If you signed an employment agreement 10 years ago that says they have that discretion, then they can make those changes if they want to. They could change it from full-time to part-time if that’s what the agreement said. If you didn’t sign an agreement that says they can make those changes, and if your employer wants to impose significant changes, that’s constructive dismissal.

#7) How does an employee negotiate the terms of a contract?

You can negotiate these terms, but you need to understand what you need to negotiate. You don’t want to have a list of more than two or three things to go back to your employer with. If you’re going to have a list of 15 things, you’re going to send the message that you don’t really want the job. Once you have that list of two or three things, you address them with your employer. You can say ‘I read the offer, I’m excited to start. I think I can really hit this out of the park. I had a couple of concerns. I wanted to raise the issue of…’  You do it that way. The worst thing that can happen is your employer is going to say no, but you’d be surprised how many times you can get them to change those terms, termination clauses, temporary layoffs, etc.  And if you follow that advice, in many cases you’d be surprised how amenable an employer is to negotiate.

#8) What leverage do employees have to negotiate their employment contracts?

Look at it from a different perspective. It is difficult for employers to find the right person for a job, especially these days. Oftentimes your employer is going to go through several rounds of interviews and reference checks, talking to recruiters. They go through a long process that takes time costs money and the process is exhausting. And after the end of that process, they’re just happy that they found you – and you’re the right candidate for the job.  Well, now you have leverage.  You have something that they want – and that’s your ability to do the job. You can use that leverage to negotiate the terms if you do it in an intelligent way. Don’t assume that just because you want the job, you don’t have the leverage you actually do.

#9) what’s the most important thing for an employer to do with respect to an employment contract?

For an employer, it’s important to give yourself as much flexibility as possible, but it’s also important to have the employment agreement drafted properly. Make sure that you give an employee time to review it and consider it. If you’re you have an existing employee and you want them to sign a new employment agreement, offer them something in return. Be smart about it.

LEARN MORE
Employment Agreements for Employers