Employment Law Show 640 Toronto – S9 E05

Episode Summary

Temporary layoffs, terminated without the employer realizing it, a cut-off pension, and more on season 9 episode 5 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto, the GTA, Hamilton, London, and across Ontario 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.

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Episode Notes

The new stay-at-home orders from the provincial government state if an employee is able to work from home their employer has to allow it.

This is a big change since the beginning of the pandemic. Many employees were previously uncomfortable going into work but their employer could request employees to return to the workplace.

I’m an employer at a window installing company. We’ve raised prices but the compensation for workers is remaining the same. Is this permissible?

Ultimately, if the rise in prices results in a reduction in compensation for employees, they can view the shift as constructive dismissal.  If an employee’s compensation is not fundamentally affected, this is perfectly acceptable.

I was off on mental health leave and was supposed to return to work, however, the return coincided with another lockdown of schools. What are my rights if I want to wait to return to work due to added stress?

If an employee is able to do their job from home, they would have to show their employer that they need to provide care for their children constantly. Depending on the job and age of children and other possible childcare help, this could be difficult to prove. Speaking with a family doctor and getting support can also be of help in this situation.

My employer told me that I’m put on a furlough which is different than a temporary layoff and is legal. Is this true?

There is no difference between a furlough and a layoff – furlough is also an American employment law term and does not apply to Canada. Any situation in which an employer decides an employee is not working for a temporary period of time is not legal. This can be treated as a termination.

I’m a delivery driver and was laid off at the start of the pandemic. I then had shoulder surgery and was prepared to return to work but my employer wants me to wait until it’s busier.

The initial layoff was not right and could have been treated as a termination but as it was accepted, the employer can argue there is implied consent to future temporary layoffs. Communicating with the employer in this situation will be important.

Can you be let go from your position and be unaware of it?

There are some terminations in which the law decides an employee has been terminated but an employer might not have realized it.

If on a temporary layoff, is an employee’s employment technically terminated?

Employees put on a temporary layoff can consider their employment terminated and choose to pursue their severance entitlements. AN employer does not have a right to lay off an employee temporarily unless the employee has specifically consented to it.

My wife works for a private company and has noticed her pay has been reduced and cut back on her pension plan. Is this legal?

It is not legal as a pension is an important part of an employee’s compensation and this reduction can be treated as constructive dismissal. Pay discrepancies should be communicated with their employer.

If an employee’s terms of employment have changed, can this be treated as a termination?

Any significant change in an employee’s employment, such as a drastic change in salary, reduced hours of work, or relocation, can be treated as constructive dismissal. An employee can choose to treat this as termination and seek severance entitlements.

If an employee is suspended without pay, can this be treated as a termination?

Unpaid suspensions are not legal. Employers can suspend employees with pay as a disciplinary measure. A suspension without pay can be treated as a termination.

If my company is sold to a new owner, is my employment terminated?

In a sale of a business with new ownership, an employee has a right to treat that sale as a termination of employment even if the new owner offers employment.

LEARN MORE
• Does new owner in Ontario have to keep me on?
• Sale of business in Alberta: Employee rights
• Sale of business in B.C.: Employee rights

If my employer has failed to accommodate my needs, can I treat this as a termination?

Employees who need an accommodation due to medical conditions such as modified hours and an employer does not accommodate these needs, is a human rights violation and also can be treated as a termination. The right to be accommodated is a fundamental right of an employee.

My wife signed a two-year contract but before she could begin her job she was notified that someone else had filled the position. What should she do?

A fixed-term employment contract without an early exit clause could mean this potential employer would owe severance in this situation for potentially two years.

My employer requested I retire and when I refused gave me notice of termination without severance pay. What should I do?

An employer cannot force an employee to retire, this is a human rights violation as its discriminatory. Severance pay is also owed as this is a regular termination.