Employment Law Show 640 Toronto – S7 E80

Summary

Fired while on vacation, reduced compensation, deducting contractors’ wages, when a new company moves in, performance improvement plans and more on Season 7 Episode 74 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, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, and more.

What We Covered

I was fired during the three month probation period after I was off work with an injury for two of those months. What are my rights?

1:43 – An individual started a new job. This job came with a three month probation period, which he agreed to in an employment contract. He was injured six weeks into the probationary period, and had to take two months off work. When his health improved he returned to work, but was fired a short time later. His employer said they could let him go because it was within the probation period.

Lior explained why the employer’s decision is likely a human rights violation. The individual is also likely owed severance pay on top of human rights damages.

I found out that a new coworker in the same position as me is earning a higher salary. Is that illegal?

4:41 – The caller was promoted to a new position within the company. She is doing the exact same job as one of her colleagues. Recently she discovered that the coworker earns a higher salary than she does. The caller was hired from within the company where she has worked for years, while her colleague was hired recently from outside of the company. Can the company pay her less than her coworker for the same position? Does this breach rights to pay equity?

Lior explained that while it is frustrating that she is earning less than a coworker who was only recently hired to an equal position, it is not illegal for a company to do this. It may be unfair and inappropriate, but it is not illegal so long as it isn’t being done for discriminatory reasons (age, ethnicity, etc.). The caller could have an open and honest discussion with her manager to bring up her concerns and try to solve the problem that way, but there is no real recourse beyond that strategy.

Can an employer sue an employee for damage caused in the workplace?

6:56 – An employer is suing an employee after they spilled red win on a customer’s $30,000 Hermes handbag. Should the employee have to pay up? Lior discussed a story that he covered in an interview with Jeff McArthur on Global News Radio 640 Toronto earlier that day.

PocketEmploymentLawyer.ca and why you should use it BEFORE calling an Employment Lawyer

10:12 – The Pocket Employment Lawyer is essentially a “virtual employment lawyer” that can provide a quick assessment of your workplace rights in a number of scenarios. Before you call an employment lawyer, use this interactive resource to determine if you might have a case that requires assistance from a lawyer.

My daughter’s manager has changed her job and reduced her compensation. Does she have to accept this change?

12:18 – Caller Jen’s daughter has been working at the same company for six years. A new director has just made changes that will cut back the amount of money she makes off of commissions. He has also started harassing her in the workplace and suggesting that she “go back to school”. Can she do anything about these changes?

Lior explained that the caller’s daughter can argue constructive dismissal and resign from her position with severance pay. An employer does not have the right, unless otherwise stated in an employment contract or agreed to by the employee, to change the terms of employment. In order for her daughter to claim a constructive dismissal, she needs to respond soon, before she is deemed to have accepted the changes to her job.

Can my employer give my job to somebody else while I am on vacation?

16:05 – A friend of a caller took a vacation from work. When she returned to work, she found that her job had been given to somebody else. Can the company give her job away to someone else?

Lior told the caller that a company is allowed to let an employee go from their job without a good reason – unless it is for discriminatory reasons or a medical issue. They can also terminate employment while the employee is on vacation. What they must do is pay the employee severance. If the employee does not receive severance, they can claim wrongful dismissal.

The subcontractors I hired for a job have made costly mistakes. Can I deduct pay from their wages to cover the damage?

19:39 – A caller to the Employment Law Show said he owns his own contracting business. He has hired subcontractors to help him with a short-term job. The subcontractors are making multiple and costly mistakes. As a result, the client wants the caller to reduce the cost of the contract. Can he legally terminate the subcontractors without paying them?

Lior said that the caller does have the ability in this case to deduct damages from their wages in order to cover his costs, but he would have to be able to prove his loses.

Our company was bought by a larger company. Does the new company need to recognize my years of employment with the previous company?

23:23 – A caller drives truck for a living. His company was bought by a larger company nearly two years ago. Last week he signed his yearly review which stated that his employment began when the new company took over. He worked 3 years for the company that was bought. Does the new company need to take into account his previous years of service?

Lior said that the reality is that the new company has inherited his three years of service from the previous company, for a total of five years and counting. Despite what it may say on his yearly review, the company must honour his previous years of work. If his employment is terminated, his severance pay will be based on his total years of service.

I was fired from my job after making a mistake at work. Am I owed severance pay? If so, how much?

25:30 – A caller’s friend has worked at a large retail company for over two years without any issues or complaints. A new policy was implemented regarding the application of tax on purchases and how it was entered into the checkout system. His friend made a mistake that cost the company $30. The company wanted to deduct that amount from his wages. When he told them that they aren’t legally allowed to withhold pay, he was suspended from work for a week. Management then brought him in for a meeting where he was fired and told to sign termination papers, which he refused to do. He received a cheque in the mail two weeks later for two thousand dollars.

Lior told the caller that his friend was correct about the deduction from his wages. It is illegal for an employer to deduct pay. The employer in this case did not have “just cause” to terminate his employment, even if he did make a mistake. In this case, he was fired without cause and is owed severance pay based on multiple factors, including age, length of service and position.

Should I be wary of a Performance Improvement Plan?

28:17 – A caller asks Lior for his opinion of performance improvement plans. Lior explains the purpose of a performance improvement plan, and what both employers and employees need to consider when one is put into play.

My job was given to another employee while I was on vacation. Is that legal?

29:51 – A caller worked at a retail store for two-and-a-half years. She took vacation for a few weeks to take care of family issues. Her manager told the caller that when she returned, she would be put on a regular schedule to help with her family matters. When she returned from vacation, she discovered that this promise would not be fulfilled and that her shifts had been given to a new employee. She found herself out of a job.

Lior discovered that this caller was the individual that the caller at 16:05 had discussed.

I was still working for a company after my initial one year contract had expired. I was let go after suffering a stroke. Am I owed severance pay?

33:53 – A caller’s friend was on a one year contract with an engineering firm. After the year contract expired, she had verbal conversations with the company about extending her contract. She suffered a stroke while at work and has been off work since. The offer to extend her contract was pulled, putting her out of a job. Because she was working past the expiration of the one year contract, was she considered an employee? Was her employment in fact terminated?

Lior explained that if an individual’s services are used by a company even after the terms of a contract have expired, they are technically considered an employee. They would no longer be considered to be a contractor. If their employment is ended during this phase of the relationship, they would be owed severance pay like any other employee.

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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