Employment Law Show 640 Toronto – S9 E110

Episode Summary

Employment law red flags, temporary layoffs, vaccine mandates, and more on Season 9 Episode 110 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 without and for cause, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, temporary layoffs and more.

Listen to the Episode

Episode Notes

I was put on a temporary layoff in 2020. Recently, I found out that my employer hired two new employees. What should I do?

You do not have to wait for the company to get back to you, whether it is to recall you or lay you off. You can choose to treat the temporary layoff as a termination of employment. That way, you don’t have to wait or continue to follow up with your employer, and they will have to pay you your full severance. Since you’re a long-term employee, that could be between 16 to 18 months of severance.

I applied for a co-op, but the employer has a vaccine policy that requires employees to receive the COVID-19 booster shot. What are my options if I don’t want to get the booster shot?

The practical issue here is that this company is not going to bring you onboard if you do not get the booster shot. The only way around that is if potentially you had medical reasons for not getting the vaccine. That would be different. However, I expect that given the fact that you got the first two shots you’re not going to be able to get a doctor’s note unless your health has changed since that time. Practically speaking, there’s not much you can do. You’ll have to make that decision.

When an employer is investigating workplace harassment or bullying, how far back can the investigation into the employee’s behaviour go?

There is no time limit for how far back a workplace harassment investigation can go. There is no law that says you can only go back a certain amount of time. That said, the longer it’s been since something happened, the less weight the company will put on that event or situation, and the less they will be able to rely on it. Practically speaking, anything that happened more than a year ago will be difficult to use as grounds for termination for cause. However, older events may speak to a person’s credibility, for example, if they put the lie to what the individual has claimed about themselves.

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What you need to know about workplace harassment

Are union employees allowed to be paid more than non-union employees? Also, can I see the union’s collective agreement?

Yes, they are allowed to be paid more. You can get a copy of the collective agreement, as it is a public document. Often it’s available online. The government of Ontario also keeps a record of most collective agreements. It would stipulate how much individuals get paid per hour in different roles. You may find out that those individuals may be paid more than you or more than others.

If the federal government issues a vaccine mandate, how will that affect employees in the workplace?

Ultimately, if the government imposes a mandate that says your employer cannot have you in the workplace unless you’re vaccinated, if you’re not vaccinated in that situation you will lose your job without any compensation. Right now, for most businesses and most employers, there is no government mandate.

A relative of mine is a school bus driver. If the province mandates 10 paid six days, is that something she’d be entitled to?

Since school bus companies are provincially regulated (as opposed to federally regulated), your relative would be entitled to access those 10 paid sick days in Ontario if that legislation passes.

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Paid Sick Days in Ontario

I worked at a casino and was laid off in March of 2020 after working there full-time for 17 years. Recently they offer me a part-time night shift on the weekends. If I walk away, am I owed any severance?

Absolutely. Right now, you are in a position to treat this whole situation as a termination and get your severance. You could have done that a while ago, but you can still do that now. Ultimately you have to decide whether to accept their offer on the terms they propose or decline it and treat this as a termination and get severance. You said you worked there for 17 years, depending on your job and your pay, you could be owed as much as 18 months’ pay. If that’s the way you choose to go, reach out to our firm and we will help you.

Can employers force employees to get vaccinated?

An employer can’t physically force an employee to do anything. What they can do is say that if you don’t get vaccinated, you won’t work for them anymore. In that situation, if they let you go for not getting vaccinated, they have to pay you severance.

Employment Law Red Flags

#1) Despite many stellar performance reviews your employer puts you on a performance improvement plan.

If you have done a good job and you’re getting a negative performance review or you’ve been put on a performance improvement plan (PIP), it means that someone has decided that they want to try to get rid of you for cause. They want to let you go without compensation, and they’re trying to build a case. You can’t ignore that, because ignoring something like that is the same as accepting it.

If you’ve been put on a PIP out of the blue and you don’t agree with it, you have to respond to it in a professional way. Send an email outlining why you disagree with the action, why the statements that justified the PIP are wrong, and provide examples of how you actually are meeting your existing performance goals. Even if they do not respond, this will provide you with some protection, and make it more difficult for your employer to terminate your employment for cause.

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Put on a performance improvement plan? Now what?

#2) After a few years on the job, your employer asks you to sign a new employment agreement.

Whenever an employer you’re already working for asks you to sign a new employment contract out of the blue, it is not a good sign. They’re doing that because that new agreement will give the company new rights they didn’t otherwise have. For example, it may give them the right to terminate you with minimal severance. So, if you sign this and they let you go, instead of being owed 15 months’ severance, you’re owed eight weeks. If you’re in that situation, simply do not sign it. They can’t punish you for not signing it. You’d be better off asking a member of my team to review it.

#3) You’ve asked your employer twice (or more) to investigate sexual harassment by a coworker, but nothing has been done about it yet.

This is definitely a red flag because the employer has a legal obligation to investigate complaints of harassment. There is a strict and non-negotiable obligation that an employer has to investigate, take measures to correct or rectify the situation, and fix that problem permanently.

If your employer refuses to take it seriously, push them by documenting your repeated attempts to bring the issue to their attention and take care of it. If they still don’t address the issue or take it seriously, contact my firm and we will make sure the situation gets resolved, or get you out of that situation with compensation.

#4) Your employer says you weren’t “the right fit” for the job, and they fire you – but they fire you for cause.

Whenever a company says they’re terminating you for cause that red flag should immediately come up. And the reason for that is it’s almost never cause. A termination is rarely properly a termination for cause. It is extremely difficult to terminate an employee for cause. It’s only in situations where the employee has done something terrible – and not being “a good fit” or maybe not even doing a good job – that’s not cause. The company may let you go, but that’s a without cause termination. They would have to pay you severance.