Employment Law Show 640 Toronto – S9 E19

Episode Summary

Terminations for cause, a change in employment status, employment records, and more on Season 9 Episode 19 of the Employment Law Show on Global News Radio on 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.

Listen to the Episode

Episode Notes

I was laid off last year due to COVID-19. I was told I would be recalled but it didn’t happen. What should I do?

Employees do not have to accept a temporary layoff and can choose to treat the layoff as a termination and pursue severance entitlements. Severance calculations will factor in age, length of service and position.

I’ve been working shift work regularly for three years but recently I was not included in the schedule. I was told they didn’t have work for me. What are my rights?

A significant decrease in hours for an employee is considered a termination even if an employer does not view it as an end to employment.

What is termination for cause?

A termination for cause occurs when an employee has behaved in a significantly negative manner, such as theft, deception etc. It is very difficult to establish a termination for cause by employers.

What type of conduct can lead to a termination for cause?

Employees who steal, or commit an act of violence, sexual harassment, etc. are examples of conduct that can lead to termination for cause. Less serious conduct will have to be proven as repeated and warnings that were given have been ignored.

I work for a courier company but a provider has made several changes to my job. What do I do if my boss is not the reason for the changes but is complying?

Ultimately it will depend on whether or not the changes impact employees and if it is a significant change for them. If it is a significant change, regardless of who implemented the changes, it is still considered a constructive dismissal.

My wife was given a letter notifying her she will be moved to part-time status as at one point she was on CERB last year due to childcare needs. What should she do?

A major reduction in schedule and hours, which results in a significant reduction in wages can result in a constructive dismissal. The change itself has to be significant however and greatly impact an employee.

What does an employer need to do to prove a for-cause termination?

Employers have to prove termination for cause by indicating there were documented warnings given to an employee for misconduct and that issues were not resolved. Employers have to prove that there is no other solution other than termination.

How should employees respond if their employer is building a case against them?

Employees should communicate with their employers if they have behaved badly. If employees do not feel the case against them is justified they should notify their employer that they do not agree with the reports.

My cousin is a driver and independent contractor and he recently got into a car accident. His company told him he is responsible for paying the expenses of the damaged truck. Is this true?

Individuals are often misclassified as independent contractors when they are in fact they are employees. An individual in this situation can choose not to pay the expenses but their employer could let them go, in which case they will be owed severance.

I asked my employer for my employment record or file and was refused as it was company property. Is this right?

Employment files do not have to be given to employees as it exists purely for an employer’s records. If there are legal proceedings against an employer is the only time they will be forced to show the employee file.

Does it matter if an employee has a long length of service when determining termination for cause?

The length of service of an employee does matter when trying to determine termination for cause as there is an assumption that the longer an employee has been with an employee, they are a good employee.

If an employee is proven to have cause for termination, do they still receive severance?

Employees who have been terminated with cause do not have any entitlements to severance. This is however usually difficult to prove.

My sister is on maternity leave and will be returning soon. She’s hesitant to put her baby in daycare due to COVID-19 but her employer says if she doesn’t she’ll lose her job.

Employers do not have to keep a position for individuals returning from maternity leave after 18 months. As long as an individual has available childcare, but chooses not to use it, an employer can treat this as a resignation.

My friend was told by a superior she could work from home but later was told it was never approved and was let go for cause. What can she do?

Choosing to work from home is not a cause for termination, and at most is possibly a breach of policy. It is important to be able to prove a for-cause termination and in this situation, an individual would be wrongfully dismissed and should contact an employment lawyer.

An employee who has been with my company for over 20 years lately has been consistently late, argumentative and uncooperative. We’ve given him warnings. Is this enough to dismiss for cause?

There has to be a proven case for-cause termination. The warnings have to be documented and clear to the employee on what behaviour is not appropriate or allowed in order to build.