Employment Law Show 640 Toronto – S9 E02

Episode Summary

Temporary layoffs,  what to do if your bonus isn’t paid, how an employer should prepare for business shutdowns, and more on season 9 episode 2 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer and partner Jon Pinkus, Associate at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto and the GTA on the Employment Law Show. Jon 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

I had considerable bonuses consistently but my severance package did not take into account my bonuses according to a company policy I’d never heard of.

Bonuses have to be paid to employees regardless of when the employee is terminated. Employment law also stipulates that an employee that is terminated will also have to be compensated for the bonus that they could have earned prior to termination. It is important for employees to negotiate whether or not a bonus will be part of a severance entitlement.

I’ve been working as a contractor for 10 years and largely set the terms of my own employment. My contract recently ended but I wasn’t offered severance. Is this fair?

A contractor who works exclusively for a sole company/ employer they are owed notice of termination as well as severance. A dependent contractor should contact an employment lawyer on whether or not they are owed severance pay.

What is a temporary layoff and how is it different than a regular termination?

Many Canadians are currently on a temporary layoff due to the pandemic as many businesses have been forced to close. The current temporary layoff has been extended until July of 2021. If an employee has not specifically agreed to a temporary layoff, they do not have to accept the layoff and it can be considered a constructive dismissal.

Is an employer allowed to temporarily lay off an employee?

Generally, if an employee has not specifically consented to a temporary layoff (in writing) then an employer does not have the right to temporarily lay off an employee. If an employee accepts a temporary layoff, it allows the employer to believe they can do so again.

How long can employees currently be laid off?

The government keeps extending when a temporary layoff can be implemented as a result of the pandemic. Currently, employees can be laid off until potentially 2023.

As a unionized construction worker, if I’m not called back from a temporary layoff am I entitled to severance?

Ultimately the collective bargaining agreement will determine the rights of unionized employees.

What can an employee do if they’ve been temporarily laid off?

An employee who has been temporarily laid off can either choose to accept the layoff or treat the layoff as a termination and pursue their severance entitlements. If an employee wishes to treat the layoff as a termination, they should contact an employment lawyer.

What are the pitfalls of accepting a temporary layoff?

Accepting a temporary layoff can imply to an employer that they are able to lay off an employee again. If an employee chooses to accept a layoff, they should communicate with their employer that they do not accept a future temporary layoff.

I’m an employer and my company could be shut down in the near future. Is there anything I can do to prepare?

Employers who have had to shut down by government mandate might be in a different situation as employees temporarily laid off by an employer’s choice. Employers in this situation can offer the choice to employees on whether or not they consent to a temporary layoff and should speak with an employment lawyer.

Is there a difference in terms of severance pay an employee is entitled to if temporarily laid off?

If an employee has been constructively dismissed as a result of a temporary layoff, they are still entitled to the same severance package. Age, length of service, and position as well as the likelihood of finding future employment are all factors in calculating severance pay.

What should an employee do if they feel their employer is building a case against them?

An employee worried about their employer building a case against them, such as warning letters and improvement plans, should make it clear they do not agree with their employer’s reports or explain the reasons behind them. Speaking with an employment lawyer can also be helpful after receiving warnings from an employer.

What should an employee do if they’re being asked to sign a new employment agreement?

An employer usually offers an employee a new employment agreement if they haven’t previously had a contract with an employee or if the previous contract had terms that were illegal or not enforceable. An employee offered a new agreement by an employer should speak with an employment lawyer before signing and agreeing to terms.

What should you do if you’re being harassed at work?

Employees who feel they’re being harassed at the workplace should note the occurrences when they happy and have written proof of the incidents. Following up with your employer and HR after the harassment has occurred is also important.

What should an employee do if their employer doesn’t accommodate their needs?

Employees who do not have a medical reason do not have to have their needs accommodated by their employers. However, for employees who have medical reasons and can work remotely, their employers have an obligation to accommodate.

My daughter is an essential worker and with schools closed currently, I’m taking care of her kids. As the grandmother, am I eligible for the caregiver benefit?

Under the ESA, if unable to work due to a school closure as a result of the pandemic, employees should communicate with their employer and invoke the Infectious Disease Emergency Leave.