Employment Law Show 640 Toronto – S7 E77

Summary

Severance during tough economic times, new employment contracts, fired after stress leave, unpaid wages, age discrimination, temporary layoffs and more on the Employment Law Show.

Jon Pinkus is a Toronto employment lawyer and Partner at Samfiru Tumarkin LLP. He reveals your workplace rights in Ontario on The Employment Law Show. Lior 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.

What We Covered

Can my employer pay me less severance if economic times are tough?

2:06 – An individual worked as a supervisor at a large manufacturing company for 25 years, working in an industry that has been struggling the last few years due to competition from new technology. Because of the economic realities, he was let go by the company and only offered 3 months of severance pay. His employer said they could not provide him with more because times were tough, and that’s all they were legally required to pay. Jon told the individual that the law is very clear that full severance pay is owed, especially if economic times are tough. He also briefly explained the difference between obtaining severance pay through a lawyer versus the Ministry of Labour’s services.

I was fired and paid severance as per the new employment contract I signed. I never received a benefit in exchange for signing the new contract. Are the terms in the contract still valid?

3:36 – A project manager was fired by his employer after 5 years on the job. Shortly after he was let go he received a termination letter from the company offering 10 weeks’ pay, which satisfied his minimum severance entitlements. They suggested that the employment contract he had signed limited him to that amount, however they were willing to add an extra 2 weeks’ pay if he signed the exit agreement and accepted the total 12 weeks severance package within a tight deadline. Jon reviewed the contract, which did contain a thorough termination clause.

But, Jon discovered that this employment contract was a new one presented to the project manager a few years after he had signed his original contract when he started the job. The individual’s employer told him had to sign it or else he would be terminated for cause. The employee was not offered anything (a bonus, promotion or pay raise) to validate the new employment contract. Because the employee did not receive a benefit in exchange for signing the new employment contract, it was rendered unenforceable, and he was instead owed $60,000 more in severance than he was being offered.

I was injured on the job and filed for WSIB. When my claim was denied, my employer cut all of my hours. What are my rights?

6:18 – My mother works for a company that provides assistance to the elderly in their homes. A client fell during one of her shifts, injuring both the client and his mother. His mother sustained a shoulder injury which worsened over time, eventually requiring her to have surgery. At her doctor’s direction she applied for WSIB and was denied. After the denial, her employer eliminated all of her hours of work and stopped contacting her, effectively terminating her employment.

Jon explained why she would likely be owed severance pay, and why it may also constitute a human rights violation if the employer fails in their duty to accommodate an employee with an injury.

I have been on a disability leave for a while now. What happens if my employer claims that I have abandoned my job?

12:45 – I just successfully settled an long term disability claim using your disability lawyers. I am approaching the 5-year mark on my disability leave from my job. When will my employer deem that my position has been abandoned? If that does happen, would I be owed any severance?

Jon recommended that the caller talk directly with the long term disability lawyer who worked on his case in order to get the best advice possible, and best coordinate with one of the other employment lawyers at the firm.

What can I do if my employer will not pay me?

15:14 – There is a chance that my boss won’t pay me for the work I just performed. What should I do if he decides not to pay me? Will I give up my rights to do anything about it if I don’t submit a verbal or written protest?

Jon explained that the employer has an obligation to pay an employee if they work and perform their duty. Where payroll is concerned, an employer is not allowed to determine IF they will pay their employee the wages they are owed. If your employer begins missing paychecks, it is extremely important to contact us to plan your next steps.

I was laid off and given severance pay. Now my employer wants to rehire me. Do I have to give the severance pay back?

17:12 – I was laid off from my job in a specialty trade. My employer gave me severance pay. Now the company wants me to return to my job, but my boss wants me to return to severance he gave me. Do I have to return the severance pay?

Jon explained that if you are fired and given severance pay, and then rehired a short time later by the same employer, you do not have to return the severance monies previously paid out to you. You can always choose to return it, but you are not required by law to hand it back to the company. He also suggested that if you are being rehired by the same company to the same position you previously held, you should request that your past service with the company be recognized. That way, if you are terminated from your job again, the previous years you spent at the company will be taken into account when calculating your termination pay.

I was injured while on the job. My manager is trying to cover up the incident and is making it more difficult to do my job. What can I do?

19:53 – I worked for a construction company. A coworker made a shoddy repair to a ladder, which I subsequently used and was injured by when it broke. To treat my injury, I underwent two hip surgeries and it completely replaced on my right side. When I reported the broken ladder, the coworker removed the broken ladder and replaced it with a brand new one to try to cover up their mistake. I have gone through the Ministry of Labour and WSIB to try to resolve this issue, but nothing is happening. The company is failing to properly accommodate my medical needs on the job, but they won’t fire me.

Jon explained that if the employer does decide to terminate his employment because of his health problems and involvement by the Ministry of Labour and WSIB, it would constitute a Human Rights Violation. It would also be considered a wrongful dismissal, meaning that full severance pay would be owed to the employee. Jon argued that if the caller’s work environment has become too uncomfortable and challenging, he can claim a constructive dismissal and leave with severance pay.

I believe I am not being hired for a job because of my age.

23:45 – I am a unionized Ontario Public Servant. I have been applying for upper-level non-unionized jobs over the past few years, but have failed to secure any of those jobs. I believe that I am being discriminated against because of my age (aka age discrimination).

Jon replied that it is quite possible that the government is denying him career advancement because he is 50 years old but other applicants are much younger. While that may be the case, it would be extremely difficult to prove that they are discriminating against him unless he has documented proof of their discriminating tactics. Jon recommended that he ask them via email or another form of writing if they are denying his application due to his age.

What is a Temporary Layoff and how does it differ from a Termination of Employment?

28:48 – For most people a temporary layoff is no different than a termination of employment. If an employer tells an employee that the Ministry of Labour or Employment Standards Act allows them to put them on a temporary layoff for a certain amount of time while still covering benefits, that is not completely true. The only way an employer can legally put an employee on a temporary layoff in that manner is if the employee agrees to the layoff ahead of time, usually via an employment agreement.

Is an employer allowed to lay off an employee temporarily?

29:44 – An employer is allowed to lay off an employee temporarily if they get the employee to sign a contract that states that the company can issue a temporary layoff when they deem it necessary.

Can an employer put an employee on a temporary layoff again if the employee was put on one in the past?

30:26 – If an employee gives their employer permission to put them on a temporary layoff once, they may be giving the company the right to do so again without permission. This would mean that the employee cannot treat the additional temporary layoffs as termination with severance pay. Whenever your boss issues you a temporary layoff, you should always talk to one of our employment lawyers to understand your employment rights and if the lay off is in fact valid.

My stress leave is almost up, but I do not want to return to work. Can I quit with severance pay?

31:36 – My stress leave is about to expire, but I don’t want to return to work. The reason I went on a stress leave was because the work environment had become too stressful. When the leave does run out, do I have to go back to my job? Can I tell them instead that I would like to quit and give my two weeks’ notice instead?

Jon learned from the caller that he has no desire to return to the company due to the level of anxiety he feels when at work. The caller should talk to his treating doctor. If the doctor’s medical opinion is that he should not return to work, the caller may be able to argue that he can no longer perform his duties and obtain severance pay.

LEARN MORE
• Ontario stress leave and employee rights

My employer owes me unpaid wages. How do I get the money I am owed?

33:27 – My boyfriend has worked as a contractor for a company for many years. They have owed him $10,000 since last year. He has pushed the company multiple times for full payment, but they have only provided small amounts here and there and he still owed thousands of dollars. He is tired of constantly fighting them. What should he do?

Jon informed the caller that it is time for her boyfriend to contact a Toronto employment lawyer at Samfiru Tumarkin LLP to help him obtain the rest of the money that he is owed.

I was fired after returning from sick leave and given no severance pay. How do I get my severance package for 24 years on the job?

34:48 – I became ill after working 24 years at a company. After I returned from sick leave I was told there was no more work for me because my boss gave my job to somebody else. I wasn’t offered any severance pay. I had no signed employment contract with the company the entire time I worked for them. I spoke to the Ministry of Labour, and they said they would only hep me secure a small amount of what I am owed.

Jon was shocked by the caller’s story. He told her that she is definitely owed a fair and full severance package, and explained why it is important that somebody who is fired from their job should not file a severance claim through the Ministry of Labour.

Experiencing an Employment Issue?

Before you call a lawyer, use the Pocket Employment Lawyer to find out if you might have a case.

Use The Severance Pay Calculator to find out how much severance pay you may be owed upon termination.

Call 1-855-821-5900, email Help@EmploymentLawyer.ca or fill out a contact form to get help now from a Toronto employment lawyer.

Denied Long Term Disability? We Can Help.

Discover your rights when your Long Term Disability Claim is denied. Find out more here.