Employment Law Show 640 Toronto – S9 E100

Episode Summary

Being put on an unpaid leave of absence, 6 months of probation, losing your company benefits, and more on Season 9 Episode 100 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. Lior 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 work in a hospital, and I’m going to be put on an unpaid leave of absence for not getting vaccinated. Can they do that?

This all comes down to whether or not there is a government mandate that requires the hospital to have employees vaccinated. The Ontario government has decided that they are not going to impose mandatory vaccinations in hospitals. If the hospital decides that they’re going to impose a vaccine mandate, and then they fire someone or they suspend someone, that’s not actually allowed. That’s not a “for cause” situation. The hospital is going to owe you compensation. Because you were put on an unpaid leave of absence, you could choose to treat that as a termination of your employment and get severance.

LEARN MORE
Can my employer mandate the COVID-19 vaccine?

Last year my company created a new role that is very similar to my job. I asked if the roles could be reviewed, but HR won’t respond. What can I do?

The question here ultimately is what the company is legally required to do? Your employer has to comply with the terms of your employment. For example, if you sign an employment agreement that says that at some point they’re going to have to go through a review process for the role, they have to do that. And if they don’t do that, that could be considered a constructive dismissal. If that’s not in your employment agreement, they don’t legally have to go through the review process. There’s nothing that you can do to require them to do it, other than to follow up and do what you’ve been doing to show them why what you’re proposing makes sense.

I started a new job, and my employment agreement stated I would be on probation for 6 months. At four months they let me go, and they gave me one weeks’ pay. Is that right?

You cannot really be on probation for more than three months. The only time the employer can conceivably let you go without compensation is during the first three months of employment, and only if that’s what your employment agreement says. After three months, they have to pay severance. You can’t be on probation for more than three months. So, if you were let go after four months, you are owed severance. I assessed you as actually being owed three months’ pay, even though you only worked for four months. That’s what happens with short-service employees.

WATCH MORE
5 Common questions about probation periods in Canada

I work for a multi-national company, and one of my colleagues turned 65, and the company cut off his benefits. Do they have a right to do that?

The only way they would have a right to do that is if either it was in his employment contract, saying that you’re only going to have benefits until the age 65, or if it was in their benefits plan, saying this company only provides benefits until age 65. If one of those things is true, then they can do that. If they simply decided we’re not going to provide benefits anymore, then no, it’s not proper and he can consider that a constructive dismissal. He could get severance and depending on the factors he could easily be owed as much as 12 months’ pay. It could potentially be age discrimination as well. He would have to decide whether he wants to pursue it.

Can I be fired after eight months of working at a job after they falsely accused me of something I didn’t do?

The real question is can you be fired for cause – because you can always be fired. But if you were fired, they would have to pay severance. If you have been falsely accused of something, and it is in fact false, you can’t be fired for cause. Just cause is only something that happens when an employee does something really terrible.

My boss told me that I would be fired at the end of the month. I told him I am leaving right away. Can I get severance?

I’ve seen this happen many times. Sometimes an employer will say they’re letting an individual go but in a few weeks. They let the person know when their last day is. Some people don’t want to continue to work until then, because they feel like it’s going to be uncomfortable to show up for work every day. So, they quit, and they want to be paid severance. Unfortunately, if you decide to leave your job before the last day of employment you are considered to have resigned, and if you resign, you’re not owed any severance. Instead, you could go to your employer with a proposal that you leave right away, and they pay you severance. If they agree, you will get your severance.

My company is often late in paying me and other employees. Is there something I can do?

One of the most important terms of employment is that you’ll get paid on the day you are supposed to and that it be the right amount. What you can do is you can treat this situation as a constructive dismissal. You can consider it as a breach of the terms of employment by your employer. In that case, they would have to pay you severance. That’s your first option. The other option is you can also file a complaint with the Ministry of Labour against your employer and get them involved. They could potentially fine the employer for paying employees late, and also order them to do better.

If a unionized employee is trying to get in touch with the union about a vaccine mandate, and the union isn’t responding, can they get help from a lawyer?

No, a unionized employee can never hire a lawyer to deal with their employer – ever. It has to be the union. There are no other options. There are no other exceptions. The only thing a unionized employee can do if their union is really dropping the ball is they can file a complaint against the union with the Labour Board. It’s called the duty of fair representation complaint. But the chances of being successful are very small.

ALL ABOUT MANDATORY VACCINES

1) In Ontario, has the Ford Government implemented mandatory vaccines?

Currently, the Ford government has only implemented mandatory vaccines for long-term care homes. For employees that work in a long-term care home the government has said employees must be vaccinated, and if they’re not vaccinated, they can’t work there.

So, if you work for a long-term care home, your employer doesn’t have a choice in the matter whether they think you should be vaccinated or not, it’s not up to them because they’re going to get fined. The government thought long and hard about whether they should implement vaccines and hospitals, and ultimately they decided not to.

LEARN MORE
Ontario and COVID-19 Workplace Vaccination Policies and Mandates

2) Can your employer let you go if you have not been vaccinated?

It comes down to what we were saying earlier: is there a government mandate? So, if you work in a long-term care home and you don’t get vaccinated, your employer doesn’t have the choice there. That’s not up to them, their hands are tied. So yes, they can let you go and don’t have to pay you anything.

For all other employees, if your employer lets you go, remember, you can’t physically stop your employer. I get asked often ‘can my employer let me go’? Well, we can’t actually prevent them from doing that. So, your employer can let you go. But if there is no government mandate, they will have to pay you severance. There could also be human rights damages potentially. But certainly, they’re going to have to pay you severance. That’s going to be considered a without cause termination.

3) Can your employer even ask you if you’ve been vaccinated?

Can they do that legally, is the heart of the question. And there’s certainly an argument that an employer does not have a right to demand personal medical information. But despite that, let’s go back to what I said earlier. What if your employer penalizes you anyway? They’re not allowed to, but they do it. Again, that doesn’t mean that you can prevent that from happening. What that means is you have to decide, because if you’re not going to comply with what your employer says, you will lose your job or you’ll be suspended.

4) Can your employer demand that you have regular COVID-19 tests if you’re not vaccinated?

A lot of employers are giving employees a choice either to get the vaccine or to have regular COVID-19 tests. If you refuse regular COVID-19 testing, what happens? First of all, you will lose your job. In most cases, if you refuse regular testing you will get severance. You may not get severance if your workplace has had some real problems with COVID-19 outbreaks and transmission in the workplace. In other words, if your employer has tried masking and social distancing but people were still getting sick, your employer has to do more, like asking people to do regular testing. In that situation, if you refuse, it could be a for cause termination, and you would not get severance.

LEARN MORE
Can I refuse to do rapid testing if I’m not vaccinated?