Employment Law Show 640 Toronto – S9 E105

Episode Summary

Temporary layoffs, vaccine mandates, wrongful dismissals, and more on Season 9 Episode 105 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.

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Episode Notes

I was put on a temporary layoff in 2020 due to COVID-19. I recently found out the company is hiring new employees. I’ve reached out to my employer but they are not responding. What can I do?

You can decide to either wait for the company to make the decision to bring you back, or you can choose to treat this temporary layoff as a termination of your employment. If you choose the latter, you don’t have to wait. You can get your severance now. Since you’re a long-term employee, you’re probably owed 16-18 months of severance.

I work at a casino, and I was put on a temporary layoff. Can I treat that as a constructive dismissal, or do I have to wait?

Yes, you can absolutely pursue a constructive dismissal if you want. We will have to connect and find out more about your job, length of employment, and compensation. But you don’t have to wait, you can treat it as a termination of employment and get your severance now.

My company has mandated vaccines but is giving the option for weekly testing at their expense. If I don’t want to get tested at all, does that make it harder to get my severance?

Since your employer hasn’t had any outbreaks and has been able to manage the workplace with just masking and distancing, ultimately, if they let you go or put you on an unpaid leave as a result of not getting the tests done, you would be able to get severance. But you have to decide if you’re better off keeping your job and doing what your employer asks or losing your job and getting severance.

My wife works for the government and worked from home prior to COVID-19. She has to attest to being vaccinated by December 13th, or she will be let go. She is part of a union. What are her rights?

The only one who can help her is the union. If the union won’t support her, then there are no other options. It doesn’t make a lot of sense to force employees working from home to get vaccinated, but that’s their decision. She has to talk to the union and push them to support her. The only other thing she could do is file a complaint against the union with the Labour Board, but unfortunately, those are rarely successful.

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• Mandatory vaccinations and rights for Unionized Employees

I am a truck driver, and I am self-employed, working for a contractor. The company my employer has the contract with is implementing a vaccine policy. Can I get out of it?

If it’s not your company mandating the vaccine, if it’s a third party that’s mandating it, then there’s not much that you can do. If it’s your company’s decision to say you have to be vaccinated, if you refuse and they let you go, you’re going to be owed compensation. The question is, is it your employer’s decision, or is it a third party that’s imposing it? If you refuse, you will be let go.

I’m going to be let go because I didn’t get the vaccine. I understand I am entitled to a severance package.  But is there any other way to go after them for forcing me to get a medical procedure against my will?

There could be a human rights issue. There’s an argument that a requirement to be vaccinated could be a human rights violation, as discrimination on the basis of perceived disability, but it has not yet been tested in our courts. If the government says to an employer through a mandate that they have to vaccinate employees or they will shut them down, the employer doesn’t have a choice. But there is no mandate that applies to most employees.

In a unionized environment, if the union is supportive of vaccination, can an employee be let go if they choose not to get vaccinated?

If the union decides not to pursue the issue, then yes, they can let employees go. But the question is, what about tomorrow or a month from now if the union changes its mind because of pressure from employees? If the union changes its mind, and they file grievances, you may still lose those grievances.

I work as a crossing guard, and my employer has mandated vaccines. I don’t want to get the vaccine. Shouldn’t they accommodate me because I work outside?

The question is not should they, but will they? Even if they choose not to accommodate you and let you go because of that, you can’t physically stop your employer from letting you go. The only thing you can do if that happens is to make sure you get compensation in the form of severance, and even potentially some other damages.

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• Can I be fired for refusing a COVID-19 vaccine?

I work as an independent owner-operator for a company, and they have decided to mandate the vaccines. If they let me go, am I owed compensation?

There is no government mandate for your employer, even though they are federally regulated. As a logistics company, they do not have to make employees get the vaccine. Based on your information, it sounds like you’re not a contractor, but actually, you’re an employee. In that case, you would be owed severance when they let you go. Even after a year, you could be owed anywhere from two to six months’ pay.

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• Employee vs. Independent Contractor Misclassification

My boss just told me that I have to get a COVID-19 vaccine in the next two weeks or I am out of a job. Is this legal?

The question is what will happen if you say no? You’re saying you will lose your job or maybe you’ll be put on an unpaid leave. You don’t have to ask whether it’s legal or not because your employer is doing it and that cannot be stopped. There is no legal mechanism to stop your employer from letting you go. Even if the reason is not one that you agree with or even if the reason is not one that the law agrees with, it’s just a matter of what compensation you are owed. Unless there’s a government mandate in place, you’re going to be owed severance, maybe even other damages.

I was just given a termination letter that offers me 26 weeks’ severance after 13 years with my company. The HR manager says that two weeks’ severance per year is standard. Does it make sense to contact you in these circumstances?

Let’s be very clear: two weeks per year is not standard. It’s not legal. It’s not the law. It’s not that simple. Your entitlements are based on a few factors: your age, your position, and the length of your employment. You are easily going to be all 12 months’ pay, not 26 weeks, which is six months’ pay. Potentially you could be owed more than 12 months’ pay. That’s what we call a wrongful dismissal. Wrongful dismissal simply is a situation where you’re offered less severance than what you are legally owed. You shouldn’t accept that.

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• Common Misconceptions About Severance Pay

I’ve been off on stress leave for two months but don’t want to go back to work because I’m afraid of how I’ll be treated. What can I do? What are my options?

You are not obligated to back to an environment where you’re mistreated, bullied, or harassed. The question is, how can you prove it? If there is a history where you can show you have been mistreated, then you don’t have to go back, you can treat it as a termination and get severance. If you can’t prove it and you don’t go back, the law will treat it as a resignation. If you don’t have the proof, you can go back and keep records, create a record of evidence, and get proof of the mistreatment.

I work for a company that has its head office in Montreal, but I work in Toronto. Which labour laws apply to me, Quebec or Ontario?

The laws that apply to you are the laws of the province where you physically work. So, since you physically work in Ontario, it’s the laws of Ontario that matter. It doesn’t matter that the company’s headquarters are in Montreal, or in some foreign country.

I’ve been working for my employer for the last five years, and they just told me that my job will end in six months, but in the meantime, my hours will be reduced from 40 to 30 hours a week. Can they do that?

No, they can’t do that. Hopefully, anytime you’re facing a reduction in hours or pay, any really significant change, the term constructive dismissal comes to mind. An employer does not have the right to make significant changes to the terms of employment. Meaning if in fact, they go ahead and do it anyway, you can say by doing that to me, by reducing my hours from 40 to 30, you’ve terminated my employment, you’ve constructively dismissed me, and now you owe me severance. Even if you’ve received notice of termination, they can’t change in terms of your employment while you’re on notice.

I just came back from a disability leave. I got into a small accident at work. My company now says it doesn’t believe that I am healthy enough to work, even though I am. Is there anything that I can do?

The only thing you can and need to do is to get a doctor’s note. If your doctor says you can return to work, your employer can’t really question that. Unless they can physically see that you’re not able to work. The doctor is the judge and jury. The doctor gets to decide if you can come back to work, or if you need to be off work. And if your employer refuses to listen to your doctor, that could be a human rights violation. That could be a termination of employment.