Employment Law Show 640 Toronto – S7 E82

Summary

Time off work for medical issues, Don Cherry’s dismissal, job abandonment, refusing to higher pregnant women, severance pay and more on Season 7 Episode 76 of the Employment Law Show on Global News Radio 640 Toronto and 980 CFPL in London.

Stan Fainzilberg is a Toronto employment lawyer and associate at Samfiru Tumarkin LLP. He clarifies your workplace rights in Ontario on the Employment Law Show. Stan 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

Was Don Cherry Wrongfully Dismissed from Sportsnet?

0:47 – Stan explained that the termination of Don Cherry over his comments on Coach’s Corner was a policy decision made by Sportsnet owner Rogers. What matters from an employment law context is whether the company let him go “for cause” (without severance pay) or without cause (with severance pay). The news cycle has failed to identify how his termination was handled. Rogers may have paid him his full severance pay entitlements to avoid a wrongful dismissal lawsuit from hitting the courts and the media.

Don Cherry has worked on Coach’s Corner for decades. It is extremely difficult to fire a long-serving employee for cause.

How much time can I take off from work for medical issues or illness?

5:09 – An employer does not have the right to terminate an employee during a medical leave after a certain amount of time has passed. The employer does not have the right to terminated the employee for cause just because they have been off on a doctor-approved medical or sick leave for six months, one year or even two years.

If the employee’s doctor determines that, due to their medical condition, the employee will never be able to return to their job, the employer can argue a frustration of contract and terminate the worker’s employment.

Stan further explained that if the employee is away form work on a long term disability claim for two years, the insurance company providing the LTD coverage will attempt to cut the employee off from their payments. The insurance company will argue that while the employee may not be able to perform their original job, they should be able to perform a similar job at another company. They will then proceed to cut off the long term disability payments. If that happens to you, you need to contact our long term disability lawyers for assistance immediately.

I have just been given one year of working notice. Am I owed any severance pay?

8:44 – A caller’s friend is 67-years-old and worked at a company for a total of 37 years in a manual labour role at a factory. He just received a letter of termination from his employer. He has been given one year of working notice but no severance pay. This means that the employee is required to continue working for the company for one year while earning full salary and benefits, after which point he would no longer be employed by the company.

Stan explained that based on his age, position and length of service, the employee is easily owed 24 months of severance pay, and is therefore owed severance pay at the end of his employment on top of the working notice he has been given. If he has an employment contract, it may contain a termination clause that limits the amount of severance pay he is ultimately owed. The employee should not sign any document that the company asks him to sign, and should instead contact the employment lawyers Toronto at Samfiru Tumarkin LLP to discover what his rights are.

I was fired after returning from short term disability. I was offered a severance package but did not accept by the deadline. Can a severance offer expire?

11:43 – A caller worked at a company for two-and-a-half years. Lately he has been harassed and verbally assaulted by his manager. He also believes that the manager is choosing to only hire and provide work to individuals of a specific religion. Due to the stress caused by his manager, the caller has had to take a 3-month short term disability leave. He returned to the workplace to learn that the company had been purchased by another employer. Two months later he was fired without a reason and offered a $6,000 severance package with a 10-day severance offer deadline. He did not sign by the deadline and was told later by the employer that the offer had expired.

Stan told the caller that an employee’s rights to a severance package do not expire after one day, three days or even two weeks. Individuals in Ontario and British Columbia have two years from the moment of termination to pursue their full severance entitlements under common law.

Is an employee’s job protected while they are off on a sick leave or medical leave?

14:58 – An employee’s job is protected while they are on a medical leave or sick leave. An employee can’t be terminated from their job while they are sick. There are circumstances where employment can be ended due to other factors. If a mass termination occurs at a company, the sick employee can be let go from their job legitimately if many other coworkers are laid off as well. The termination in that case would not be directly related to the fact that the employee was on a medical leave.

Is an employer required to give an employee time off work to attend a doctor’s appointment?

16:45 – An employer is required to accommodate an employee’s medical needs, including medical appointments with a doctor. An employer has a duty to accommodate an employee’s request to step away from the workplace to make a visit.

My employer told me that the will not hold my job for me if I take a medical leave. Can they do that?

17:31 – The caller’s wife suffered from kidney failure. As a result of this medical issue, she went off on a sick leave. The small company she worked for told her they wouldn’t hold her job for her while she was off on a medical leave, and that she would not have a job to return to when her leave expired.

Stan told the caller that the company is not allowed to take that position. If they do refuse to take her back to work, it would be a violation of her human rights and she would be entitled to damages. She would also be owed her full severance pay, as her employer’s actions would be viewed as a termination without cause.

I was sent home after arguing with my manager and was told to wait until they called me back to work. I just received a letter that said I had abandoned my job. Is that legal?

19:21 – Stan discussed a scenario that unfortunately happens too often in Ontario. An employee is sent home following an argument or mistake at work. They are told to wait until the company contacts them with instructions to return to their job. Instead of receiving a call to return to work, the company claims that the employee has abandoned their job, which couldn’t be further from the truth.

Employers may push the job abandonment narrative in order to avoid having to terminate the employee and provide them with a severance package. A company can’t claim that an employee has resigned if the employee has not made that intention clear.

An employee isn’t showing up for shifts. Can I fire them for cause because of their absenteeism?

22:15 – The caller has an employee that is continuously missing shifts without advance warning. When he does return to the workplace, he claims that he was too ill to make it in to work. Stan told the caller that he needs to document each and every instance where the employee has failed to turn up to work. The employer needs to communicate his concerns with his employee. If the employer has enough evidence of continued absenteeism, he may be able to argue a termination for cause and fire the employee without paying severance.

Can an employee’s job be given to another employee while they are off on a parental leave?

25:53 – When an employee takes a parental leave, the employer can fill their role temporarily with a coworker or new hire. What the employer generally cannot do is give the employee’s job to somebody else. When an individual returns from a parental leave, they are entitled to the job they had before they took their leave of absence, at the same pay as before.

Can a termination clause in an employment contract limit all of my rights to severance pay?

27:43 – The caller’s friend has been asked to sign a new employment contract. The contract contains a termination clause that identifies her severance pay entitlements under the Employment Standards Act (ESA). Stan told the caller that a termination clause can limit an employee’s severance entitlements to what is legally protected under the ESA, which would be thousands of dollars less than what is allowed under common law. Termination clauses can be rendered void if they are poorly or improperly written. An employee is not required by law to accept a new employment contract if they are asked to sign one by their employer.

Can a company reject a job applicant because they are pregnant?

29:35 – The caller is a supervisor at a company. An employee is taking an 18-month maternity leave. The company posted a job ad to temporarily fill the position. Two candidates, a male and female, are favoured for the position. The female candidate has better qualifications than the male candidate, but she is 4 months pregnant. Can the employer refuse to hire her to the position due to her pregnancy? Stan explained that if they do pass her over in favour of the male candidate because she is pregnant, it would be a violation of her human rights.

Truck Drivers and deductions for a 30-minute lunch period

32:39 – The caller is a truck driver. His employer deducts 30 minutes of pay every day from his paycheque to account for a lunch break. Stan explained that under the Employment Standards Act employees are entitled to a half-hour unpaid break. The employer is within their legal rights to deduct that pay.

LEARN MORE
Truck drivers and severance pay

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