Employment Law Show 640 Toronto – S9 E57

Episode Summary

Returning to work from a layoff, termination for cause, and more on Season 9 Episode 57 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.

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Episode Notes

What does it mean for employees if the IDEL layoff period ends?

Many employees have been on a temporary layoff since March 2020 under the Infectious Disease Emergency Leave, the IDEL period is currently set to expire July 3rd, 2021. While some employees could be brought back after this period ends, many could then be put on a regular layoff by their employers.

Employees have a right to return to a safe workplace.

Employers are obligated to provide a healthy and safe work environment for all staff and personnel. Employees are also entitled to work in a safe workplace. Employees who feel concerned about returning to work should communicate their worries to their employers.

Employees have the right to earn the same pay, and hours of work prior to a layoff.

Employees returning from a temporary layoff should be returning to the exact same position prior to the layoff. Employers do not have the right to change the terms of an employee’s position without their consent. Fundamental changes to terms of employment can be treated as constructive dismissal.

Employees do not have to sign a new contract upon a return from a layoff.

Employees should not sign a new employment contract without first contacting an employment lawyer. Employment contracts often seek to limit an employee’s rights and entitlements.

Employees’ seniority does not revert after a return from a layoff.

Employees who return from a layoff do not have their seniority revert back to zero; their previous years of service as well as the time during a layoff count towards the length of employment. This is important to remember when calculating an employee’s future severance entitlements.

Employees who are not recalled back to work are owed severance.

Employees who are currently on a temporary layoff and don’t wish to wait to be recalled, can treat their layoff as termination and pursue their severance. After IDEL ends, employees can still be put on a regular layoff by their employer.

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Infectious Disease Emergency Leave-in Ontario

Some of my employees want to remain on a layoff despite being called back to work. What do I do?

It is important to determine why an employee does not wish to return to work such as possible medical conditions and caregiving responsibilities. Employees who simply do not want to return from a layoff can be treated as having resigned from their position.

My team has been working from home but now that COVID-19 numbers have been improving they’re asking for a return to the office. Do I have to return?

Employers are within their rights to ask employees to return to the office if they have previously been working remotely. Employers have to provide a healthy and safe working environment and employees have the right to refuse unsafe work. Employees who have medical conditions could ask their employers for accommodations.

What is termination for cause?

Termination for cause occurs when an employee is let go due to misconduct and wrongdoing.

I recently was diagnosed with cancer. I can’t manage the schedule that is expected of me. I have a doctor’s note informing my employer of the situation. What else can I do?

Employees should ensure they have the proper documentation from their doctor stating they are unable to perform their job in the same way and for possible accommodations needed at the workplace. Employers have a duty to accommodate employees with a medical condition and a refusal to accommodate can be considered a human rights violation.

How difficult is it to establish termination for cause?

It is typically very difficult for an employer to be able to establish a just cause termination, particularly for employees with a longer length of employment. Employers have to be able to show there were no other possible options other than termination and that there has been an escalation of discipline.

How many chances should an employee get from their employer before they are terminated for cause?

There is no definite number of changes that an employee has to be offered in order to justify the termination but purely the type of conduct and manner of misbehaviour.