Employment Law Show 640 Toronto – S9 E104

Episode Summary

Fired due to childcare reasons, constructive dismissals, employment contracts, and more on Season 9 Episode 104 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Toronto 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.

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Episode Notes

My child recently had to be hospitalized and so I had to take a leave of absence. While I was off my boss was constantly telling me to return to work. Upon my return, I was badgered and eventually fired for cause. Can they do this?

Employees who have to take a leave of absence due to an illness or due to childcare reasons cannot be penalized by their employer or terminated for cause. Employers who penalize employees due to their childcare obligations are violating their human rights. Employees are protected under the human rights code under family status.

What is the maximum amount of severance a terminated employee can receive and how is it calculated?

In some situations, employees can receive up to 24 months of severance if they were older and in a higher position and/or a long service employee. In some cases, extenuating circumstances can result in an even longer period than 24 months but it is very rare.

I’ve been working as a security guard at two condo corporations that recently went bankrupt. I was let go based on the income based on the other condo corp I worked for. Can I still receive severance?

Employees should note that if a company goes bankrupt, it could be impossible to receive severance. Companies that shut down and do not delcare bankruptcy could still owe terminated employees their severance entitlements. Employees who are unsure of their rights and are confused by what they have heard from their former employers should reach out to an employment lawyer in order to determine their rights.

What is a constructive dismissal?

A constructive dismissal occurs when an employer enacts a fundamental change to the terms of employment for an employee. Changes considered to be significant can be a major reduction in compensation, a relocation, a demotion, etc.

How do you know if you’ve been constructively dismissed?

Employees who are unsure if they have been dismissed should speak to an employment lawyer. An indicator of constructive dismissal is if an employer is imposing a change that has not been imposed before, or if it is against an employee’s will.

My daughter experienced a violent attack and I had to help her with treatment and requested time off work. I was denied and told to speak to HR for protected status. What can I do?

Employees are entitled to take time off and leave due to violence or any sort of traumatic experience. Employers cannot refuse employees’ requests in this regard and it is considered a human rights violation. Employees are obligated to try and find alternatives however, they cannot be penalized by their employer for requesting time off. Employers are not obligated to pay employees while they are on leave.

I’m being harassed at work. Can this lead to constructive dismissal?

A toxic work environment can lead to constructive dismissal however the circumstances have to be extreme. An employee will have to be able to point to specific incidents and should communicate to the appropriate party at work regarding the incidents of harassment. Constructive dismissals in these situations are used as a last resort.

LEARN MORE
• A toxic work environment and Long-term Disability Claims

If an employee decides to work despite a change to the job, what are the consequences?

It is important to keep in context the type of change that is imposed. Accepting significant changes such as a major reduction in pay or a demotion can lead to difficulties for the employee as it is considered an accepted new term of employment. Accepting changes can lead to future changes being imposed in the workplace by an employer.

After returning from sick leave my weekly shifts have changed completely. I was told nothing could be done due to COVID-19. What are my rights?

Many employers have imposed significant changes in the workplace as a result of the pandemic. It is important to determine whether or not the changes made by an employer are temporary or permanent. Permanent changes can lead to constructive dismissal. Before seeking a constructive dismissal and resigning from their position, employees should speak to an employment lawyer.

My employer wants me to sign a new agreement and if I don’t do that I will be fired. Can they do that?

While employers in this situation can terminate an employee, they must do so without cause in Ontario. Employees who refuse to agree to a new term of employment can be dismissed but will be owed their full severance entitlements. Before agreeing to a new contract employees should speak to an employment lawyer as a new agreement often contains terms that seek to limit future severance entitlements.

Do employers inform their employees regarding their rights during and after maternity leave?

Employees returning from maternity leave have the right to their job upon return or a comparable position. Employees on maternity leave cannot be asked to work and cannot be penalized or terminated while on leave. Employees who are terminated before a leave will potentially have a much higher severance entitlement.

Will my employer tell me if I’m an employee and not an independent contractor?

Employers are often unaware that individuals have been misclassified and are actually employees. Ultimately, if an employee is in business for another entity and not themselves and does not have a great deal of control, they are not independent contractors.

Will my employer tell me if the business is sold and I don’t have to work for the new owner?

Employees who are offered a position by the new owner should consider their rights and if the job is comparable. Employees should wait to work at the new position and refrain from signing a release before speaking to an employment lawyer.