Employment Law Show 640 Toronto – S9 E90

Episode Summary

Concerns while on medical leave, temporary layoff extensions, severance entitlements and more on Season 9 Episode 90 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’m a manager and was employed for 5 years. I recently had to take a sick leave as I had COVID-19. After refusing my doctor’s note I was told I didn’t provide enough medical information and I’d abandoned my job. What can I do?

Employees who have properly presented their employers with adequate medical information or communicated their needs and concerns with their employer cannot be penalized and considered to have abandoned their position. It is also important to remember that penalizing or terminating employees as a result of an illness is a potential human right violation and employees in this situation would be owed further damages as well as severance entitlements. All communication with employers should be documented in writing for further evidence in pursuing legal action.

I was terminated after ten years and was told I would not receive severance as I worked on commission. Is this true?

Employees who work in Ontario and are non-unionized are entitled to severance regardless of the structure of their compensation, and whether or not they are salaried employees. Employers who refuse to pay severance to terminated employees could also potentially owe additional damages. Severance for commission-based employees will be based on the average of their earnings over the past few years.

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Severance Pay in Ontario

How long can an employee be away from work for medical reasons?

According to the Employment Standards Act, employees are owed three sick days per calendar year. However, employees who have the approval of their doctors are permitted to be on sick leave for as long as is necessary to recover and return to work. Employees should update their employers with their prognosis throughout their leave with reports from their doctor. Employees cannot be penalized for taking leave or due to illness.

I have no written agreement on banking overtime hours. What can I do?

Employers need to have a written agreement dictating the number of overtime hours they have worked and their compensation. Employees who are not managers or in IT-specific roles are entitled to overtime compensation. Employees should apply to the Ministry of Labour for unpaid wages and bring their concerns to their employer.

Does an employer have the right to ask an employee for their diagnosis?

Employers have the right to ask an employee for a prognosis and not necessarily the diagnosis. Employers do have the right to ask for information that allows them to determine the necessary accommodations for an employee to return to work and if they can provide what an employee needs. On very rare occasions, an employee can ask for an independent medical assessment.

What happens to an employee’s job while on medical leave?

Employees cannot be terminated while on leave but should provide their employer with regular updates on their condition and prognosis. Employees whose position is no longer available upon their return must be offered a comparable position.

What can an employee do if they’re denied LTD coverage and benefits?

Employees who are denied long-term disability coverage by an insurer, cannot be forced to return to work. Employees who unfortunately are unable to return to work at all are still able to receive their minimum entitlements.

What are former employees entitled to if their employers are unable to accommodate their needs?

Employees are entitled to their full severance entitlements unless there are stipulations in their employment agreement that limit their severance. Employers are obligated to try and accommodate employees up until the point of undue hardship. Employers who refuse to allow employees to return and have not tried to accommodate employees, have virtually terminated the employee and are obligated to pay severance and could be liable to human rights damages.

The Infectious Disease Emergency Leave has been extended again. Do I have to remain on a temporary layoff?

Employees do not have to accept a temporary layoff and as IDEL has once again been extended to expire in January 2022, might want to consider their layoff as a termination. Despite the pandemic, employers did not have the right to temporarily lay off employees. Employees on a layoff can choose to accept the layoff or pursue their severance entitlements.

I didn’t do anything wrong. Can my employer still fire me?

Employers are permitted to terminate employees for any reason as long as adequate severance is offered and the reason is not discriminatory. Employees often incorrectly assume that wrongful dismissal is about the reason for termination rather than the severance package offered as a result of termination for cause.

How are severance packages calculated?

Severance pay is based on a number of factors including the age of an employee, the length of employment as well as the position. Other external factors are also taken into consideration, such as commissions, bonuses, the likelihood of future employment, etc.

Can my employer changes aspects of my job when I return from a layoff?

While employers are permitted to make minor changes, fundamental changes to the terms of employment are not legal and can lead to constructive dismissal. Employees who are unsure whether or not the changes implemented are reasons for constructive dismissal should contact an employment lawyer to determine their next steps.