Employment Law Show 640 Toronto – S9 E20

Episode Summary

Working notice of termination, laying off employees during probation, constructive dismissals, and more on Season 9 Episode 20 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as an employment lawyer at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto and the GTA on the Employment Law Show. He 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’m a salesperson with mostly commission-based payments. Due to the pandemic, there’s been a decrease in sales. Can I treat this as a constructive dismissal?

Unfortunately, constructive dismissal cannot apply to just a decrease in sales. Constructive dismissals only apply to a change implemented by the employer that significantly changes or reduces the compensation an employee receives.

My employer’s business has been booming since the pandemic and as a result, my employer dropped the commission rate. Is this allowed?

A substantial decrease in revenue implemented by the employer can be considered grounds for constructive dismissal for an employee. Ultimately this is up to an employee if they choose to decide to treat this as a termination and pursue severance.

What is working notice of termination?

Working notice of termination is when an employer decides to notify their employee they will be terminated at a later date and it is permissible. It is not common as it is not usually in an employer’s best interest but usually takes place if a part of the business is shut down and there has been a mass termination of employees.

I hired a cook and asked him for a police report. He never gave it and I was going to let him go during his probation but he got ill and won’t be back for a while. Can I let him go?

Employees who are on a medical leave of absence and are let go can potentially sue for human rights and discriminatory complaints. If an employer has frequently expressed their concerns with an employee and has been ignored, they should make sure it is documented.

What can an employee who’s been given working notice do if they don’t want to continue working?

Employees who choose to leave before the end of their employment and working notice termination date will forfeit their rights to severance entitlements as it is considered a resignation.

Does an employer have to pay additional severance at the end of the notice period?

Severance is based on a set period of time and does factor in compensation that cannot be provided during a working notice period. This compensation will have to be given after the end of the notice period. The working notice end date has to be very clear and has to be documented.

Can the employer change the end date of a working notice period?

Employers who constantly move the end date will make the working notice unclear and an argument could be made at a later date that there should still be severance entitlements for an employee.

How much notice should an employee receive?

The amount of working notice an employee receives should be based on the amount of severance they are entitled to. This will factor in the age of the employee, the length of service as well as the position.

Can an employer make significant changes to an employee’s status during working notice?

An employer cannot make significant changes, such as a demotion, to an employee’s employment status during the working notice period. If they change the terms of employment, an employee can choose to treat this as a constructive dismissal and pursue their severance.

Can an employee be terminated for cause during a working notice period?

An employee can be terminated for cause during their working notice period, assuming the cause is legitimate.

I’ve been given one week’s notice and no severance as my contract is ending. But I have had 8, one-year contracts with this employer. Am I not entitled to anything?

Consistent contracts over a long period of time can be considered a consistent period of employment and employees in this situation will be entitled to severance.

Can an employer let an employee go who has a disability?

Terminating an employee who is currently on disability benefits who suffers from a disability could potentially be a human rights violation.

Can an employer get in trouble for letting an employee go before an annual bonus or commission payment?

Annual payments or commissions are a regular part of an employee’s severance entitlements. Employers cannot delay wages for no reason, and this will include commission or bonuses.

What would it cost an employer if they let an employee for because of their age?

Age is protected under the human rights code, and termination due to age is considered discriminatory. Many individuals currently have been put on a temporary layoff due to their age since the pandemic has begun. This is not legal and potentially discriminatory.