Employment Law Show 640 Toronto – S7 E78

Summary

Workplace rights for older employees, severance for federal workers, new employment contracts, why you should avoid the Ministry of Labour and more on Season 7 Episode 72 of the Employment Law Show on Global News Radio 640 Toronto and 980 CFPL.

Lior Samfiru 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

Is my employer allowed to make it difficult for me to return to work from a medical leave?

1:07 – An individual was off on a medical leave for six months. Her employer repeatedly asked her for information about her medical condition and for an estimate of how long she expected to be off work for, and what her return date would be. She wasn’t able to answer her employer’s questions. When she attempted to return to work from a medical leave six months later, her employer refused to return her to her job unless she was able to take a test proving that she no longer suffered from a medical ailment.

Lior explained why her employer’s actions constitute a human rights violation because she is being mistreated due to her medical condition. The company might also be deemed to have constructively dismissed her because they are throwing up obstacles to her attempted return to work. She would be able to treat her employment as being terminated, and leave her job with a severance package.

Is my Employment Contract still valid if I take on a new job or role?

4:26 – When a client was hired as senior controller of a company, he was made to sign an employment contract that severely limited his termination entitlements (or severance pay that he would be owed upon termination. Six years later, he became the new CFO of the company. He did not, however, sign a brand new employment contract related to that position. When he was let go, he was paid his severance entitlements based on his contract for comptroller, rather than CFO.

Lior explains why an employment contract may not always be valid. In this case, the contract could no longer be enforced because the company had changed his role and the terms of the original contract no longer applied.

Can an employer fire an older employee because of their age?

7:17 – Employment lawyer Lior Samfiru explains that age is one of the protected areas of employment law. An employer cannot discriminate against an employee because they are deemed to be “too old” to work. An employer can’t decide that they don’t like the employee anymore because of their age.

If an older employee can no longer handle certain aspects of their job, the employer has a duty to accommodate them. Accommodation might include changing some of the employee’s tasks or finding them another job. An employer can’t penalize the worker because of a medical condition or their age. Our laws are very specific about that.

Employers should also be aware that there is no mandatory age of retirement in the province of Ontario.

An older employee is becoming less productive. What are the employer’s options?

8:55 – If an older employee is becoming less productive, the company needs to assess the situation before making any decisions. Is the employee experiencing a medical or age related issue? Is it a performance issue, in that the employee simply isn’t working as hard as they used to? Employers are allowed to ask an employee why their job performance is slipping to get to the root of the problem.

If the performance issue is related to age or a medical problem, the company cannot simply impose discipline on the employee. First, the employer must consider if workplace accommodations need to be made and how to make them. Employers and employees should work together to figure out how to solve the problem and improve the situation for both parties.

Read more about the costs of terminating older employees.

I’m starting to struggle at my job. Should I talk to my employer about it?

10:25 – Employees should be honest with themselves and their employer. If you realize that you are beginning to struggle at work due to either age-related or health-related issues, you need to tell your employer. Make it clear that your problems are not tied to poor performance. Talk to your doctor in order to best determine what your limitations in the workplace are and the assistance you will need from your employer.

How far do I have to go to accommodate an employee at work?

12:09 – There is no finite list of steps an employer needs to take to accommodate an employee. The most common type of accommodation an employer can make is putting the employee on modified duties or modified hours. Perhaps the employer can provide the worker with additional breaks or provide them with a better shift time. At some point during the course of accommodation it may be determine that the employee’s requirements are too difficult to satisfy, however that tends to be a very high standard to meet.

Can an older employee be disciplined or terminated for failing to keep up with their workload?

13:54 – An employer cannot discipline or terminate an employee if they are unable to keep up with their job due to a medical or age-related reason. Sometimes employers will “play dumb” and act as though they weren’t aware of the employee’s disabilities when it comes time to discipline or terminate their employment. Employers should be reasonable.

Can an employer suggest to an older employee that they should resign from their job?

15:36 – An employer might decide to ask an older employee if they would like to resign from their position. If they decide to take that approach, they should do so very carefully. When choosing this approach, always get the conversation in writing and confirmed by the employee to avoid any accusations and confusion down the road.

The employer could offer options to the employee. Option one would be workplace accommodation. For option two, the company could offer a severance package to the worker if they decide to retire. What the employer should not do is suggest that the employee is no longer welcome at the company and that retirement is really their only option.

PocketEmploymentLawyer.ca and what it can do

21:12 – The Pocket Employment Lawyer is an online interactive resource designed to give legal information to the public about their specific employment law problem. The tool covers a number of workplace issues.

Do I need an employment lawyer to get severance pay? Should I use the Ministry of Labour to get my Severance instead?

23:05 – You should not use the Ministry of Labour to get termination or severance pay. The Ministry of Labour can only help you get your minimum entitlements as guaranteed by the Employment Standards Act. An employment lawyer can help you get a full severance package, which is often many times more than the minimum amount guaranteed by the Ministry.

Can my employer fire me if I did nothing wrong?

24:48 – An employer can fire an employee for many reasons – even if that reason isn’t accurate or justified. You can be let go from your job for something as trivial as being late for work or wearing ugly socks to work. In those cases, the company must pay you severance. An employer is not legally allowed to fire you for reasons that would be filed under discrimination.

Can my employer change my salary or workload whenever they want?

26:01 – An employer can’t make changes to an employee’s job. If the company significantly lowers pay or increases workload, they are are making fundamental changes to the terms of employment. Employees in this situation can treat those changes as a constructive dismissal and walk away from their job with a severance package.

If you let your employer make a change once, you essentially give them the right to do so again without any penalty. You can tell your boss, in writing, that while you are okay with a change to your job right now, you are not giving them permission to do so again in the future.

Are severance rules different for federally regulated employees?

28:27 – The severance pay rule for employees working in a federally regulated work environment are not different from the rules governing other non-unionized workplaces. Termination pay will still be based on factors like age, length of employment and position. The only thing that is different between federally and provincial regulated workers is the MINIMUM severance pay entitlements that you are owed upon termination.

Can my employer fire me if my long term disability claim is cut off by the insurance company?

29:38 – Your employer cannot fire you or try to force you back to work from a disability leave if you have been cut off by your long term disability insurance provider. If your doctor says that you still can’t work, your boss can’t make you return to your job. Often times, the insurance company denies a claim when there is no real reason to do so. If that happens to you, you need to contact us to get the compensation you are owed.

Do part-time employees have a right to severance when they are fired from their job?

31:25 – It is true that part time employees are entitled to severance pay if they are let go from their job without cause. It doesn’t matter if somebody works three days a week or 3 days a month. You are owed severance based on factors that include age, position and length of time at the company. Part time employees can use the Severance Pay Calculator to determine how much notice or pay in lieu of notice they are owed when they are let go.

Can I be fired for cause if I don’t improve while on a performance improvement plan?

32:33 – An employer does not have free rein to terminate an employee for cause simply because they have failed a performance improvement plan. If an employee has legitimately failed to improve their performance during the course of the plan they can be let go without cause, in which case they must be provided with a severance package.

The company has been accommodating my medical condition for three years. Now they want me to submit to an independent medical examination or else I will be placed on unpaid suspension.

35:11 – Your employer can’t suspend you without pay if you choose not to undergo a medical examination from a doctor supplied by the company. They employer’s doctor will likely determine that you no longer require accommodation, despite what your own doctor might say. An employee’s doctor often has a better understanding of their patient’s medical history and current dilemma than an company-supplied medical expert.

You should also be aware that an unpaid suspension is illegal and can be treated as a constructive dismissal. The employee would be able to resign from their job and obtain a full severance package.

How does severance pay work if you move from one office to another within the same company?

38:15 – I have worked at the same company for 19 years, moving from one location to another throughout the GTA and Hamilton. When I lost my job I was only given 3 weeks’ notice because I had worked at the most recent location for the past 3 years. They said the other 16 years didn’t count because they weren’t spent at the same store.

Lior explained why the company’s take on severance pay is completely wrong and inappropriate. The employee’s package should be based on her full 19 years of employment instead of her most recent 3 years.

I have been asked to transfer to a different department and sign a new employment contract. Should I be concerned?

39:47 – I have worked at the same company for 15 years. Last month my employer asked if I would like to transfer to another department. They said that I would have to sign a new employment contract in order to work in the new position. What are my rights.

Lior said that the new employment contract will likely limit the amount of severance pay that is owed upon termination. The employee cannot be punished or fired because they refused to sign a new contract. If the worker is keen on taking the new job, they can attempt to negotiate the terms of the employment contract to produce a more favourable agreement for parties.

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 an Employment Lawyer Toronto.

Denied Long Term Disability? We Can Help.

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