Employment Law Show 640 Toronto – S9 E71

Episode Summary

Temporary layoffs, what reduction in pay, returning from maternity leave,  and more on Season 9 Episode 71 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.

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Episode Notes

I worked for the same company for 25 years and was diagnosed with cancer recently. Due to ongoing stress, I took some shortcuts at work. I apologized to my boss and took a leave of absence. They eventually terminated me for cause. What do I do?

After 25 years, the company really has to ask itself, was this the way to treat an employee even in the absence of the cancer diagnosis and the struggles this person was having? After a single error, employees are entitled to have this be something lesser than a termination. A company that is aware of an employee’s health conditions and terminates them anyway also raises serious human rights questions. Employees should remember that if ever confronted with having done something wrong, it is important, to be honest with their employer.

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Termination for cause

I’ve worked for a manufacturing company for 10 years. Five years ago I was asked to sign an agreement in exchange for a bonus. I agreed but now that I’ve been terminated my employer is saying that the agreement limits me to eight weeks’ pay. What are my rights?

Before agreeing to sign a new employment agreement, employees should contact an employment lawyer in order to determine if the agreement in any way limits their rights and severance entitlements. In many cases, the termination clause in a contract is unenforceable, however, it is important not to take an unnecessary risk.

What is a temporary layoff? And how is it different than a regular termination of employment?

for most people, a temporary layoff is no different than a regular termination. The only thing that makes a temporary layoff different is that an employer at some point may recall an employee back to work. If they don’t, then it’s certainly no different than a termination. If an employer does not recall an employee until months later, they are entitled to the termination pay during that time that was out of work.

My wife was nearing the end of her maternity leave when she was informed that she was temporarily laid off due to COVID-19. What can she do?

Employers cannot terminate employees who are on maternity or paternity leave as it is considered discriminatory. Employees who are laid off temporarily can treat the layoff as termination and pursue their severance entitlements.

Is an employer allowed to lay off an employee temporarily?

If an employee has agreed as a term of their employment, an employer is able to implement a temporary layoff. If an employee has not agreed to a temporary layoff previously or as a term of their employment, an employer is not permitted to do so. Employees can choose to accept the layoff but should communicate with their employer in writing that the layoff is a one-time occurrence. Employees who do not voice their concerns should remember that by accepting the layoff, implied consent has been given to their employer to implement layoffs in the future.

How much severance is a temporarily laid-off employee entitled to receive?

Employees who have been temporarily laid off are entitled to the same amount of severance as a regular terminated employee.  Severance entitlements will only differ if an employer calls an employee back to work. The duration of the temporary layoff is also considered to be part of an employee’s length of employment for future severance considerations.

LEARN MORE
• Severance Pay in Ontario
• Severance Pay in BC
• Severance Pay in Alberta

While IDEL has been extended to September 25th, 2021, common law severance entitlements have not changed. What does this mean?

Assuming that the IDEL deadline does not get extended, employers are not going to be able to keep on employees on emergency leave. Most employers are going to have to make a decision regarding employees who are on a layoff; whether that means recall employees or terminate employees permanently. Employees who do not wish to wait till September and have been laid off as a result of COVID-19 should contact an employment lawyer to pursue their rights.

My employer wants me to come back to work at half my salary. I’ve been laid off for a year. What happens if I refuse?

A major change to the terms of employment, such as a significant reduction in pay, can lead to constructive dismissal. Employees will have to decide whether or not they wish to accept the change to the terms of their employment  It is also important to remember that a reduction in compensation will impact future severance entitlements. Severance is going to be based on the accepted lower compensation.

If your employer, is building a case against you, what does that mean?

Employees will often hear from their employer that they’re being put on a performance improvement plan when their employer is building a case against them. Performance improvement plans are often not actually performing improvement plans. Very often, they are made in bad faith, and they are made by employers to try to deprive that employee of severance later on. Employees have to speak up should do so in writing.

If offered a new employment agreement, what should an employee do?

Employees should be wary of signing a new employment agreement without first contacting an employment lawyer. Many new agreements could enclose a termination clause in order to limit an employee’s severance entitlements. In many cases, employers are able to persuade employees to sign agreements without realizing they are giving up their rights.

What should you do if you’re experiencing harassment at work?

Employees who are experiencing harassment at the workplace should not continue to take abuse but instead speak to the appropriate party, whether that is HR or their employer. Employees should make sure that they’re writing emails that are contemporaneous with the events themselves. Once an incident takes place it should be recorded immediately. Before an employee leaves their employment they should speak with an employment lawyer as a resignation due to harassment is considered a constructive dismissal. Resigning without an employment lawyer can lead to giving up employment entitlements.

What should I do if my employer is refusing to accommodate my needs?

A lot of people suffering from various medical ailments right now. Employers have to accommodate employees up to the point of what’s called undue hardship. Undue hardship means accommodations could potentially jeopardize their business and unless possible accommodations are that extreme, employers have to listen to their employee’s medical advice.

What should I do if my employer is refusing to pay me both overtime and vacation pay?

Most people are entitled to vacation pay and with some exceptions, most people are also entitled to overtime pay. If in Ontario, an employee is working more than 44 hours per week they are entitled to overtime pay.  Certain IT professionals and certain managers are not entitled to overtime pay. If an employee is owed overtime pay, they should keep a record of hours worked and communicated with their employers regarding the time work. Employees who are not paid their compensation can file a complaint with the Ministry of Labour.