Employment Law Show 640 Toronto – S7 E81

Summary

The worst severance offer, facts on termination for cause, problem with performance improvement plans, return from stress leave and more on Season 7 Episode 75 of the Employment Law Show on Global News Radio 640 Toronto and 900 CHML in Hamilton.

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

What to do when a workplace investigation only makes matters worse

1:05 – An individual was sexually harassed by a male colleague at work. She filed a complaint with the Human Resources department, who said they would investigate the matter. The HR person assigned to the case conducted a shoddy investigation where she shared the individual’s complaint and details with the entire office, making the environment an uncomfortable one. HR ultimately felt that harassment hadn’t occurred. Unfortunately HR, through their failure to keep the individual’s privacy safe and all details confidential, created a more difficult work environment for her.

Lior explained why she was able to treat her workplace as being “poisoned” allowing her to leave with severance pay through a constructive dismissal.

The worst severance offer Lior has ever seen

4:11 – An individual had worked at a company for 24 years. Approximately 3 years ago, he decided to leave work to be with his family. A month later he was hired back by the company. When the company decided to terminate his employment, they claimed that he only worked for them for 3 years and gave him 4 weeks of severance pay.

Lior explained that common law essentially ignores that one month period the individual was off the job, which means that his severance package should be based on 24 years of service rather than just 3 years. This was a difference of over $200,000 on his severance pay. He also highlights a leave of absence.

What are the different types of termination?

Termination Without Cause

7:12 – The most common termination is a termination without cause. This is a standard termination that is use when somebody is let go for reasons that can include cost cutting, restructuring, or personal preference. Most terminations fall under this category. These reasons are not considered to be so awful that the employee must be let go “for cause“. What makes a termination without cause valid is if the employer provides adequate termination pay, or severance pay, to the employee.

Termination For Cause

7:52 – A termination for cause is reserved for the worst offenders. It can only happen if the employee did something so bad that it is impossible to continue employing them. If that standard is met, the employer can let the employee go without giving them any notice or severance pay in lieu of notice.

Is the length of employment a factor in a termination for cause?

10:06 – If you have been working at a company for a long period of time it is assumed that you have a good idea of how to properly do your job. This makes it much more difficult for a company to fire somebody for cause. It is unlikely that an employee turned into a bad apple overnight after a decade or so of employment. If the employer does try to terminate for cause and the reason doesn’t hold up, the employee can claim wrongful dismissal.

Do you get any severance if you are terminated for cause?

12:07 – If an employee has built a solid case around the termination of an employee “for cause” and there is definitely cause, the employee would not be able to access severance pay. But that’s not to say that this is always the outcome. Sometimes, employees who are legitimately let go for cause are still owed some severance pay, though not what they would be entitled to if the termination was without cause.

How common is it for an employer to try and terminate for cause when they have no case?

14:03 – Lior explained that it is extremely common for employers to apply a termination for cause on an employee when they do not have proper grounds to do so. Sometimes companies do so innocently. They may not actually realize that the reason they are letting an employee go does not actually amount to a “for cause” situation.

How many chances should an employee get before the employer can fire them for cause?

15:13 – The answer to this question really depends on the offence that has been committed by the employee. For instance, a 20 year employee that has recently been late for work twice will be entitled to many warnings before a termination for cause can be explored. A general guideline suggests that 3 warnings are sufficient before the company explores the termination for cause territory.

If an employee is caught stealing from the company, a warning usually isn’t required before they are fired from their job.

PocketEmploymentLawyer.ca is the resource you need to use before you call an employment lawyer Toronto

18:57 – The Pocket Employment Lawyer is the best way for somebody in Ontario to get a handle on their workplace issue and find out if they may need a paralegal or employment lawyer in Toronto to help them with severance pay, wrongful dismissal, a constructive dismissal or even a temporary layoff.

What do I do if I have been placed on a temporary layoff with no set return date?

21:30 – If you have been placed on a temporary layoff with no return date, you should treat your employment as being terminated. In the eyes of the law a temporary layoff is a termination. In most cases, an employer does not have the right to put you on a temporary layoff. They are valid if you agree to take a temporary layoff or it is covered in an employment contract. A temporary layoff is an accepted part of most seasonal jobs. If the layoff is not valid, you can obtain severance pay.

What should I do if my manager puts me on a performance improvement plan just to fire me?

23:52 – Managers often use a performance improvement plan to justify the termination of an employee. If the reason for the plan is legitimate, you can accept it and go along with it. But if you disagree with the performance improvement plan and feel that it is without merit, you should protest it in writing. This may help to secure your job or ensure that you have a much better chance at securing severance pay upon termination.

My boss has given half of my hours to a younger employee. Can they do that?

25:19 – A company cannot take responsibilities or pay from an employee and transfer them to a younger employee. This would be age discrimination and a human rights violation. This change to the employee’s job would also be considered a constructive dismissal. A constructive dismissal claim will allow you to resign your position with full severance pay.

HR wants to meet with me and I think they want to let me go. What should I do?

27:49 – There is not much you can do if the company intends on firing you. If they want to fire you, they likely will. That being said, Lior described some a scenario involving medical conditions that may make the employer think twice about following through on termination.

I’m ready to return to work from a medical leave, but my boss said I have no job to return to. He said he will help me get EI. Should I accept his help?

30:00 – If the termination of an employee is legitimate and not tied to their medical condition, their focus should be on ensuring they receive a fair severance package. Their focus should not be on employment insurance (EI). An employee does not require an employer’s help to secure EI.

The employee should ask why the employer isn’t returning them to their same job and same pay after the medical leave. Has the employer actually tried to find another job to potentially accommodate your medical needs? Do they not want to bring you back to the workplace? Ask these questions first before contacting us.

My boss offered to help me resign. What should I do?

34:29 – If an employer is trying to get you to resign instead of terminating you, you should refuse to do so. The employer is likely trying to avoid paying the employee severance, which is the outcome of a termination. If they can convince the worker to leave their job, they are not required to provide a severance package. The employee in this case should refuse the employer’s request and continue working until the employer decides to end the relationship.

I’ve been off on a stress leave for 2 months but am afraid to return to work because of how I may be treated. What should I do?

35:56 – If an employee can establish that the element in their workplace that forced them to take a stress leave is still there, they do not need to return to work. They can in fact opt to claim constructive dismissal due to a “poisoned” work environment.

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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