Employment Law Show 640 Toronto – S8 E102

Episode Summary

Terminations for cause, temporary layoffs expiring at the end of the Infectious Disease Emergency Leave, and more on season 8 episode 102 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as an employment lawyer at Samfiru Tumarkin LLP reveals your workplace rights in Toronto and the GTA on the Employment Law Show. He shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, and more.

Listen to the Episode

Episode Notes

Many individuals across Canada are currently on Infectious Disease Emergency Leave, which is scheduled to end in January. What happens for them next?

For many employees who are currently on a temporary layoff, the end date for IDEL could be extended. If the leave is not extended, many employers can put their employees on a regular temporary layoff which can last for 35 weeks. Employees on a temporary layoff can treat this temporary layoff as termination and can pursue their severance entitlements.

What is termination for cause?

A termination for cause is when an employee has conducted themselves terribly at the workplace and the employer has no choice but to let the employee go.

How difficult is it to establish termination for cause?

It is very difficult to establish termination for cause as there is a high threshold for this classification. Most cases that are classified as a termination for cause do not qualify.

Does the length of employment of an employee factor into a termination for cause?

An employee’s length of employment does factor into a termination for cause. The longer an employee has been employed by a particular employer it is harder for an employer to prove a for cause argument.

Does an employee receive severance if they are terminated for cause?

Employees who are terminated for cause do not receive severance entitlements. Many employers who state termination for cause for the termination for an employee are not aware of what the accurate qualifications are.

How many chances should an employee receive before they are terminated?

Termination for cause is situational. An employee who has erred should be notified by their employer that they have made a mistake. Employees should be given the opportunity to rectify the situation.

Does an employer have to build a case in order to terminate for cause?

In most situations, an employer will likely have to build a paper trail of prior warnings given to the employee to show that there is cause for termination.

Do I have to wait till the Infectious Disease Emergency Leave is over to ask for my severance?

Assuming the emergency order ends, an employer can put an employee on a regular layoff for another 35 weeks. With the help of an employment lawyer, an employee can choose to seek their severance entitlements at the end of the emergency leave if they are still not recalled to work by their employer.

I was recalled from a temporary layoff earlier this year. Can my employer lay me off again?

An employer does not have typically have the right to put an employee on a temporary layoff.  If an employee agrees to a temporary layoff in an employment agreement, the employer will be able to do so. However, if an employee accepts a temporary layoff initially, an employer could have a stronger argument to do so again.

I work as a sales representative for a big company. Despite the pandemic, our quotas haven’t been adjusted. Could this be grounds for constructive dismissal?

If an employer sets regular quotas and expects employees to hit certain targets consistently, a lack of change would not be considered constructive dismissal as the terms of employment have not changed. However, an employer cannot have just cause for termination for an employee not meeting set quotes due to external factors.

Can my employer terminate me for cause if they have changed the quotas and I can no longer meet them?

If an employee is expected to hit certain targets in their performance, and the targets are suddenly changed arbitrarily, they cannot be terminated for not meeting the new expectations.

I could not provide a medical update from my doctor immediately and was terminated for cause. Is this right?

Failing to get an immediate response from a doctor cannot be used as a cause for termination. Employers have an obligation to accommodate an employee that is experiencing medical issues.

I’m currently on LTD and my HR said I had frustrated my contract with my employer and was going to be terminated unless I return to work. Can they do that?

A frustration of contract occurs when an employee can no longer do their job due to external factors and will likely not be able to return to work, typically due to medical reasons. If an employee wishes to remain employed but is unable to work, communicating with a doctor might be of help as they can give an employer a better understanding of the employee’s condition.

I was told by my employer that I would not be paying rent when I was offered the job but I have discovered that I am. What should I do?

By implementing a charge that was not agreed upon, the employer is effectively implementing a pay cut. If an employee does not communicate dissent in respect to the charge however an employer could make the argument that it was accepted. Any change to an employment agreement can be treated as a termination.