Employment Law Show 640 Toronto – S7 E87

Summary

An employer’s working notice workaround, time in lieu of overtime pay, and termination rights for real estate agents on Season 7 Episode 81 of the Employment Law Show on Global News Radio 640 Toronto and 980 CFPL in London.

Lior Samfiru is an employment lawyer in Toronto 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

Am I required to find a replacement if I am too sick to work a shift?

1:59 – An individual was working at a company with a new policy that requires sick employees to find a coworker to cover their shift. The previous policy stated that managers were responsible to find somebody to cover the shifts. The individual fell ill, was unable to find somebody to cover their shift, and was fired days later as a result. The company claims that they had just cause to terminate their employment.

Lior explains that an employer can ask an employee to find a replacement when they are too sick to work. However, when the employee is unable to find a replacement, they should not be disciplined. An employee is not committing misconduct if they are sick, and others are not able to cover the shift. The employee in this case was wrongfully dismissed, and is owed significant severance pay as a result. The wrongful dismissal lawyers at Samfiru Tumarkin LLP will help the obtain their full severance pay.

• Learn more about finding a replacement for a shift.

I chose to resign from my job after my employer told me that were likely shutting down. Do they owe me severance pay?

4:42 – I was a truck driver, working for a company for 28 years. I was told by my employer that the company was shutting down. After hearing that news, I decided to leave the company for work elsewhere. I have since learned that my former coworkers all received one week’s pay in severance for every year worked, up to a maximum of 26 years. Does my employer owe me any severance?

Lior explains that because the caller resigned before his employment was actually ended by the employer, he is not entitled to any severance pay. An employee only receives termination pay if they are let go from their job.

Lior adds that the caller’s colleagues should contact the employment lawyers at Samfiru Tumarkin LLP, as their employer likely owes them much more than 26 weeks of severance pay. The 26 week “maximum” is what an employee can receive under the Employment Standards Act through the Ministry of Labour. Common law severance pay in Ontario provides employees with a far greater amount of severance pay when they are let go without cause – up to 2 years of pay.

My employer will add my yearly bonus to my severance package if I accept it by a certain date. Should I accept the offer?

7:19 – An individual has been let go after 13 years on the job. Their employer is offering 13 weeks of severance pay. The company says they will even throw in his full 2019 bonus ($10,000) as a kind gesture, but only if the employee accepts the severance package by a certain deadline.

To start, Lior argues that 13 weeks’ pay is an inappropriately low amount of severance pay, given the employee’s years of service. The individual should instead receive around 12 months’ pay. Lior also explains that the employer must automatically factor a bonus into the severance package. They cannot use it in an attempt to have the employee sign off on an inadequate severance offer.

Always use the Severance Pay Calculator first before you accept a severance offer.

Can my employer put me on working notice for one year instead of firing me and paying severance?

9:30 – I’ve been working at the company for over 40 years. My boss has just handed me a termination letter. The letter says that I will be let go one year from now. Can they do that?

Lior explains that the employer has given the employee working notice. Instead of firing an employee and handing them a severance package, an employer reserves the right to set a future termination date for an employee instead. The advance notice of termination replaces severance pay. However, employers often fail to provide an employee with the appropriate amount of working notice.

In the caller’s case, if he remains at the company for the entire year, he should receive 12 months of severance pay. Lior warns the caller not to sign any termination letter that the employer hands to him. If he does so, he will waive his right to full severance.

My boss has been giving me a hard time since my return from a medical leave. What are my rights?

11:32 – My friend was off work for a while after being diagnosed with cancer. She has since returned to work and is currently on modified duties. The boss is now giving her a hard time, and he wants her to return to her regular working hours and conditions. She is represented by a union. What are her rights?

Lior explains that employment lawyers cannot represent unionized individuals. Their only recourse is to present their concerns to their union representative. Unfortunately, an employee in this situation has no other recourse if their union fails to take up their plight.

Can my employer choose to give me time in lieu of pay instead of over overtime pay?

13:22 – My employer doesn’t pay me in cash for overtime hours. Instead, I receive time in lieu of pay. The lieu time is “straight time,” rather than “time and a half.” In order to use the lieu time, we must get approval from the company. What are the laws regarding lieu time and overtime pay?

Lior says that employees must receive overtime pay if they work more than 44 hours per week. Overtime is to be paid at 1.5 times the employee’s regular hourly rate. The employer can choose to provide the employee with time in lieu of overtime pay, but only if the both the employer and employee agree to it, in writing. Additionally, time in lieu of pay must still be provide at 1.5 times the employee’s regular pay.

Lior tells the caller that he should call the Ministry of Labour. The Ministry can force the company to change its policies and properly calculate time in lieu of overtime pay. The Ministry may also be able to force the company to compensate the employee for unpaid overtime.

My employer doesn’t want me to work with him anymore, and has given me three options. Do I have to accept any of them?

15:32 – I’ve been with my current employer for over 12 years. He just sent me an email explaining why we can no longer work together, and has provided me with three options:

• I can find another position within the company;
• find a job at another company; or
• accept working notice of termination.

Lior instructs the caller to tell her employer that she will continue working unless he tells her to stop working, in which case he will owe her severance pay. While it appears that the employer is suggesting that she has done something wrong, there is likely no grounds for discipline or a dismissal for cause (without severance pay).

Real estate agents and termination rights

18:43 – I am a real estate agent, and have been working at a brokerage for five years. My boss has just handed me termination papers and a severance offer. I have been completely blindsided by this move. During the first three years with the company, I was treated like an independent contractor, before becoming a fully taxed employee. This termination occurs before the end of my stress leave. My employer is offering me three weeks of severance pay, and is giving me just over a week to accept the offer. My employment contract contains a non-competition agreement.

Lior says that the caller’s employer can let him go, but must provide the proper amount of compensation in order to avoid a wrongful dismissal situation. Because he was likely an employee and not an independent contractor during his first three years on the job, his employer must calculate severance pay for the real estate agent based on five years of employment.

Lior believes that the caller’s non-competition agreement is likely not enforceable, however it should be reviewed by an employment lawyer in Toronto before he takes any action that may breach the non-compete clause.

I am on a medical leave of absence. My employer won’t accommodate me and the insurance company is denying my disability claim. What should I do?

22:48 – I have taken a medical leave of absence. My application for short term disability short-term disability has been denied by the insurance company in Ontario, and I am not able to access employment insurance. My employer says I still have my job, and can take as much time off as I need, but cannot accommodate my medical condition.

Lior tells the caller that if he has the ability to work with accommodations, and the employer can make those accommodations, they must do so. An employer has a duty to accommodate an employee. If the employer has a legitimate reason as to why they cannot accommodate him, the insurance company must compensate him.

I constantly work overtime hours in my role as an office manager. Am I owed overtime pay?

26:32 – My wife is a salaried office manager at a dental office. She constantly works more than 44 hours per week. Is she entitled to any overtime pay?

Lior explains that because the caller’s wife is a manager, she is not legally entitled to overtime pay.

My employer is planning to reduce my benefits package. Can they do that?

27:32 – Some of my family members have been working at the same company for nearly 15 years. The company will be revamping their benefits plan, moving from a structured plan to a flexible one. They expect the company to reduce coverage in many areas to cut costs. My relatives have asked HR to keep existing employees on the old plan, however the company is refusing to make that accommodation. Can the employer refuse to accept my relatives’ proposal?

Lior explains that an employer can decide to reduce the value of their employees’ benefits plan. If changes to a benefits plan results in a significant negative impact on an employee, that employee may be able to argue constructive dismissal. They can claim that the terms of employment have been changed, and opt to resign with full severance pay.

How do I calculate severance pay for a part-time employee?

30:43 – I am an employer. How do I go about calculating severance pay for a part-time or casual employee? Do I use the same factors that apply to full-time, salaried workers?

Lior explains the calculations that an employer should use when determining severance pay for part-time workers.

I have an employee who is refusing to perform some of his regular duties. Can I let him go without severance pay?

31:49 – I have a 55-year-old employee who does not have an employment contract. He is beginning to refuse duties that he has previously been performing for many years. He is also abusing our unlimited vacation time program by taking an inappropriate amount of time off. What can I do to get him back on track or send him on his way?

Lior explains that the employer can let the employee go without cause by offering him a fair amount of severance pay. If the employee is regularly breaching company policy or failing to properly perform his duties, the employer can build a case against him. Eventually, he may be able to legitimately terminate the employee for cause, and avoid paying a full severance package.

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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