Employment Law Show 640 Toronto – S7 E79

Summary

Don Cherry and wrongful dismissal, working from home, negotiating employment contracts, work visas, severance packages, termination clauses and more on Season 7 Episode 73 of the Employment Law Show on Global News Radio 640 Toronto and 980 CFPL.

Employment Lawyer David Vaughan, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Ontario on the Employment Law Show. David shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, and more.

What We Covered

Was Don Cherry wrongfully dismissed by Rogers after his comments on Coach’s Corner?

1:37 – David analyzed Don Cherry’s termination from Coach’s Corner hockey programming by Rogers after he made controversial comments about poppies just days ahead of Remembrance Day. He explained why Cherry would likely be able to claim wrongful dismissal if Rogers decided not to provide him with a full severance package. David also explored the concept of termination for cause, and why Rogers probably wouldn’t have a case for termination for cause with Don Cherry.

Read more about Don Cherry’s situation in our blog here.

What is factored into a severance package?

6:27 – David discusses the different factors that go into a fair severance package. Severance pay is based largely on age, length of employment at the company and the position held. But there are different forms of compensation that need to be factored into a package as well. These include commission, bonus, and pension, to name a few.

My employer wants to end the practice of working from home. Can they do that if it is something we have been doing for years?

8:55 – Caller: My coworkers and I work from home a few days a week from time to time. This has happened for many years and we have all accepted it as a regular aspect of our job. Now the company wants to stop this practice. They want to ban us from working from home. Would this be a change in the terms of our employment (or a constructive dismissal)?

David told the caller that he would likely be correct that if their employer tried to make a change to their arrangement, they would be able to argue constructive dismissal and leave with severance pay. A few different factors would need to be assessed in order to make that full determination. There is also a possible human rights issue involved, if the company is refusing to allow employees to work from home in order to accommodate family needs.

Why are employment agreements important?

15:17 – An employment agreement, or employment contract, is a document that spells out all aspects of an employee’s job with a particular employer. It is an agreement between both sides that usually details salary, the position, hours of work, the type of work being done, any benefits that the employee is entitled to, and the amount of sick days or vacation time that they are allowed to us. They can also dictate whether or not you can work for a direct competitor after your relationship with the current employer ends. Employment contracts usually come with a termination clause that seek to reduce the amount of severance the company must pay if they fire or lay of the employee.

I need a work visa to do my job in the United States, but my employer refuses to get one for me. What should I do?

16:45 – CALLER: I’ve been with a company for 22 years now. For the past 4.5 years I have traveled to the United States without a work visa as part of my job. Now the U.S. government wants me to get one, but the company has decided not to obtain one for me. Now I sit in our Canadian office doing nothing. I have been asking for new work to do for the past six months but my boss isn’t responding to my emails and phone calls.

David believes that this is likely a constructive dismissal. The employer is responsible for getting him a work visa so that he can continue to do his job. The caller can choose to continue to earn a salary while doing very little in his job, or he can push his employer to respond to his concerns.

I think my employment contract breaches the Employment Standards Act. Does that mean the termination clause is no longer valid?

20:25 – CALLER: I believe that the termination clause in my employment contract breaches the Employment Standards Act. If that is the case, does that mean that the termination clause is meaningless?

David confirms that if a termination clause does not follow the rules of the Employment Standards Act the whole termination clause can be tossed out. This would allow the employee to obtain their full severance pay under common law.

Is it possible to negotiate an employment contract so that it provides better terms for the employee?

23:10 – CALLER: I signed an employment offer a few years ago without thoroughly reading through the contract. I eventually lost my job because my position was no longer required. Right before I lost my job I had a great performance review and was promised a bonus as a result. However there was a section in my termination clause that said if I was let go I would not be entitled to my bonus. Can you ever negotiate the terms of an employment contract so that it is more fair for the employee than the employer?

David discusses the difficulty that employees encounter when trying to negotiate an employment contract with an employer and the inequality that exists.

I have received a job offer from another company. There is a non-compete clause in my employment contract with my current employer. Is it enforceable?

29:40 – CALLER: I took a job 3 weeks ago. It turned out to be the opposite of what I expected and I realized that it would not be a good fit for me. During that time I received a job offer from another company I had applied for around the same time. Their offer was for a higher position and double the salary of the job I did choose. I accepted this new job offer and told the first employer who accepted my resignation. When I checked the first company’s employment contract, I saw that it contained a non-compete clause. Should I worry that the company I just left after three weeks will come after me because I jumped to a semi-competitor so quickly?

David explained that there are a number of factors that are considered when considering the legitimacy of a non-competition clause. Those factors include length of service at the company, how direct the competition is, the geographical restrictions in the clause, and so on. He said that the courts generally don’t like non-compete clauses because they can be unfairly restrictive for an employee who is looking for new work after being terminated.

I resigned from a company almost two years ago, but wasn’t given any severance pay. Am I owed anything?

33:30 – CALLER: My friend worked at a warehouse for 9 years. He left the company on his own terms almost two years ago but he wasn’t given any severance pay from his boss. Can he go back and ask for it now?

David revealed that if you resign from a company, you are not owed any severance pay or termination pay. However there are circumstances where severance is owed upon resignation.

Do you have to sign a new employment contract every time you are promoted?

35:31 – CALLER: Do I have to sign a new employment contract if I receive a promotion or increase in salary? Is there a legal requirement for an employee to sign a document that makes the change official?

David told the caller that an employee is not required to sign an employment agreement when they are promoted. Employees are often promoted without being handed a new document to sign. If an employee is handed a new employment contract to sign following a promotion, they should read through it carefully to make sure they aren’t signing a document that contains terms and clauses that will take away their rights.

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.

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