Employment Law Show 640 Toronto – S9 E33

Episode Summary

An ageing workforce, refusal to accommodate,  employer rights, and more on Season 9 Episode 33 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as 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.

Listen to the Episode

Episode Notes

I was paid a salary, significant commission and bonus annually. My sales performance over the past year and as a result of working remotely, have reduced. My employer offered to cut my territory or terminate employment. What do I do?

Severance entitlements must include an employee’s base salary but also commission and annual bonuses. Severance packages also take into consideration the age, position, and length of service of an employee.

I was asked when I was going to retire but I haven’t made any firm plans. My employer told me I was going to be given a retirement package. Is this legal?

Mandatory retirement is not legal in Ontario. Forcing an employee to retire is a possible human rights violation.

What can employers do when employees are no longer as productive?

Employers can offer possible accommodations for employees who are struggling; either medical or health accommodations or a performance improvement plan. Termination without cause is also possible as long as appropriate severance is offered.

What can an employee do if they are struggling to work due to their age?

An employee should ask for assistance if they are struggling to perform their duties. Proper communication with their employer will protect an employee’s possible severance entitlements. Employee’s with a health condition can also take medical leave with their doctor’s support.

Can an older employee be disciplined if they “can’t keep up”?

Older employees can be disciplined and terminated as long as the disciplinary action and termination are not due to an employee’s age. Employees should question whether or not there are external factors preventing them from performing at their job.

As I lived far away from the office, I’d stay in a hotel overnight due to the commute. Due to the pandemic, I haven’t been able too and my employer is now asking for a return to a 3 day work week or I take an unpaid leave of absence.

Generally speaking, if an employee is unable to return to work due to possible COVID-19 exposure, an employer is obligated to protect their job and suggest a medical leave of absence. If an employee is able to do their work from home, proper communication with their employer is important although an employer is not obligated to allow employees to work remotely.

Can an employer terminate an employee due to their age?

An employee cannot be penalized or terminated due to their age, it is a human rights violation. Mandatory retirement in Ontario is also illegal.

If an employer has no choice but to terminate an older employee, what are their severance obligations?

An employee’s severance entitlements are based on a number of factors, including years of service, as well as the age of the employee. An older employee typically will have a larger entitlement to severance.

If an employee feels they were terminated due to their age, what should they do?

Employees who feel their termination was discriminatory, should not sign any termination papers and contact an employment lawyer as soon as possible.

What questions should you be willing to answer an insurance adjuster regarding short or long-term disability?

It is important to contact a disability lawyer in regards to communicating with an insurance adjuster.

Should you contact the Ministry of Labour regarding severance entitlements?

The Ministry of Labour can only advise former employees on their minimum severance entitlements and not their full severance entitlements.

Can my employer fire me in order to cut costs?

An employer can terminate employees for any reason, as long as a proper severance package is offered. Termination is also illegal if the reason is fundamentally discriminatory, such as due to the age of an employee, religion, etc.

Can my employer change my rate of pay, schedule, etc, whenever they want?

If the change to the terms of employment is minor, an employer is permitted to implement changes. However, significant changes are not permitted and are grounds for constructive dismissal.

I’m an employer at a temp agency. I had an employee scheduled to show up today and they have not. What rights do I have?

Employers are within their rights to issue a warning to employees or terminate an employee with a valid severance package. Employers should contact an employment lawyer if they are unsure how to properly terminate employees.

Are there completely different rules for federally regulated employees regarding severance?

While there is a Canada Labour Code and employment standards act for provincial employees, full severance entitlements remain the same for federally or provincially regulated employees.

Can an employer terminate an employee if they are cut off from their long-term disability benefits and on disability leave?

AN employer cannot terminate an employee if their disability benefits are cut off. Insurance providers often are not permitted to cut off benefits but do so regardless.