Employment Law Show 640 Toronto – S7 E83

Summary

Benefits of no employment contract, flex hours, wrongful dismissal, moonlighting while on stress leave, pay raises, medical leaves and more on Season 7 Episode 77 of the Employment Law Show on Global News Radio 640 Toronto and 980 CFPL in London.

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

Can my employer change my bonus structure?

2:13 – An individual learned that the company was planning on changing their employee bonus structure. This change was expected to negatively impact employees by reducing the amount of compensation they would receive. For this particular employee, it would result in a potential reduction of his overall income by as much as 20%.

Lior explained that a company cannot make a significant change to an employee’s compensation, whether that change is to a straight salary, commission or bonus earned by the employee. If a company does make a change to either of those avenues of compensation, the employee can file a constructive dismissal lawyer and obtain full severance pay.

Sick Days in a Unionized Workplace

4:55 – A caller works in a unionized environment, where the employees receive 6 sick days per year. Unfortunately, those sick days do not cover emergency or other situations. Lior explained that under the Employment Standards Act, employers are required to provide some leaves of absence to their staff, including personal sick days and leave to deal with family issues. These days off must be recognized in both private and unionized workplaces.

While an employment lawyer can advise unionized employees as to how they should navigate an employment situation, they are not able to represent said employees on employment law matters. Unionized employees essentially forfeit their ability to refer to an employment lawyer when they join a workplace that is governed by a collective bargaining agreement.

Do employees have fewer employment rights when they join a unionized workplace?

7:34 – Lior told a caller that an employee’s rights are significantly restricted when they accept a unionized job. That employee can no longer enforce their workplace rights. The union becomes the only entity that can fight on behalf of the employee on numerous employment matter. Even if the employee is not pleased with the level of representation they receive from the union, or their union decides not to support a grievance, an employee cannot turn to a Toronto labour lawyer for help.

If I decide to give my employees a bonus out of the blue for two years straight but not the third year, could I be sued for constructive dismissal?

8:52 – An employer may approve or deny an employee bonus on a yearly basis. That is, they can choose to provide a bonus to an employee one year, and withhold the bonus payment the following year if they feel that it is not justified. This holds true so long as the employee does not have an employment contract that outlines a bonus structure and payment.

Wrongful Dismissal after 7 years on the job

10:21 – An employee was let go after 7 yeas on the job. They were told that the company was “going in another direction”. He was given a termination form and offered 7 weeks’ pay in lieu of notice on top of another 7 weeks’ pay as his severance package. He was also offered another $3,500 as a signing bonus on top of the 14 weeks’ pay if he accepted the offer, for a total of about 18 weeks’ pay. As an assistant manager, Lior told this caller that he would actually be owed 6 – 9 months’ pay, which would mean that his severance offer is half of what it should be. The employee was wrongfully dismissed and is owed full severance pay.

I was fired from my job as a hockey referee. Am I owed severance pay?

13:13 – A caller was a hockey referee for 11 years. During the last 3 months of his employment, he began clashing with certain members of a hockey team. The employer ultimately decided to terminate his employment. He was paid hourly by the employer to the tune of $900 per month, and was scheduled to work by the employer. Lior explained to the caller that because he is likely an independent contractor, he is probably not owed severance pay.

I do not have an employment contract. Will my rights still be protected if I am fired from my job?

17:36 – A caller began work at a construction company as a general labourer and worked his way up to a management role after 25 years at the company. Since the day he started he has never had an employment contract. Lior told the caller that he is far better off NOT having an employment contract. In a vast majority of cases, an employment contract contains clauses and terminology that seeks to limit an employees rights and entitlements in various scenarios, including termination of employment.

I was fired 10 days before moving from a part-time to a full-time position. Am I owed severance pay?

20:48 – A caller was hired for part-time work at a private college. Ten days before he was to start full-time work with the institution, he was taken off the schedule entirely and effectively terminated. Lior told the caller that he was terminated or fired without cause, and is owed full severance pay under common law.

Our company has let us work flex hours for the past year. Now they’re putting an end to it. Are they allowed to make that change?

24:40 – For the past year the company has allowed its employees to operate on flex hours. A new interim manager has taken over the department temporarily, and has announced that staff are no longer allowed to work on flex hours. If employees need to arrive at work late or leave early, they will need to get approval from the manager.

Lior told the caller that because she is part of a union, she must consult with her union representatives and the collective bargaining agreement that governs the employee-employer relationship. In a non-unionized environment, the change could be considered significant, which would mean an employee would be able to argue constructive dismissal and leave with severance pay.

Can I do work on the side while I am off on a stress leave?

26:36 – A caller said he is doing work for various ride-sharing companies while he is away from work on a stress leave. He noted that delivering food is vastly different from his full-time job. Lior told the caller that if his employer finds out about his moonlighting, he could be in a spot of trouble and facing termination. He recommended the caller talk to his union first to get their blessing or determine if he should stop working on the side while on a medical leave.

My employer has changed the requirements I need to meet to get a pay raise. Is that legal?

28:49 – An employee has been with a company for 5 years as a personal support worker (PSW). She just had her yearly review where employees have the chance to request a raise. Her supervisor told her that she needs to work a 12-hour shift in order to qualify for a raise, which was not a requirement in the past. Lior said that unless there a condition in her employment contract that outlines the qualifications that must be met for a pay raise to be considered, and the employer is ignoring those terms, the company’s actions are not illegal.

My company wants me to be on call, and will only pay me for the time that I am actually needed, but not the time spent waiting on call. Is that okay?

31:46 – An employee may soon be asked to work on-call shifts for the company. His employer told him that while he will be required to be ready at a moment’s notice for these shifts, he will only be paid for the time he is actually called to work.

Lior told the caller that the employer is not legally required to pay him while he waits to be called. But, more importantly, because the idea of on-call shifts are new to his employment, the employee may be able to treat his job as having been constructively dismissed. He would be permitted to resign from his job with severance pay.

How long can an employee stay on a medical leave without giving their employer a return date?

34:25 – An employee has been off on a medical leave for the past 8 months. The company has hired somebody to temporarily fill the position until the employee’s return. How long can the employee stay on a medical leave of absence without giving their employer a return date?

Is an employer required to pay their employees at least minimum wage?

35:46 – A caller’s friend is being paid far less than minimum wage. Is a company allowed to do that? Lior explained that what the company is doing is illegal.

Experiencing an Employment Issue?

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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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