Employment Law Show 640 Toronto – S9 E91

Episode Summary

An ageing workforce, forced retirements, extended temporary layoffs,  and more on Season 9 Episode 91 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 sales manager and have been working remotely due to COVID-19. I was terminated for cause due to my vaccination status. Is this legal?

In sectors in which there is no government mandate that imposes mandatory vaccinations, employers cannot terminate employees with cause due to their vaccination status. While employers are permitted to terminate employees without cause, the reason cannot be discriminatory and adequate severance must be paid. Employees who have been penalized or terminated due to their vaccination status and have not received severance should contact an employment lawyer as soon as possible. Employees who have lost their job due to their vaccination status, unfortunately, cannot be given their job back, despite legal action.

I was employed for 15 years and offered a one-time bonus 3 years ago to sign a contract. I’ve been terminated now and was told I only get the statutory minimum severance. What can I do?

Employees should be very careful before agreeing to sign a contract particularly after they have already begun employment. Employment agreements can contain terms that limit an employee’s future severance entitlements in a termination clause. It is vital for employees to seek legal advice before signing an agreement. In some circumstances, the termination clause will not be enforceable however it is important to prevent possible limitations to an employee’s rights.

What can employers do if their employees have become less productive over time?

Employers should first try and determine whether or not an employee has a medical condition and has requested ongoing accommodations. Employers are within their rights to offer coaching or a performance improvement plan in order to genuinely improve an employee’s productivity. Employers are also able to let an employee go without cause as long as the reason is not discriminatory and adequate severance is offered.

I’m an independent contractor and I’ve been asked to retire by the main client I work with. I do my own taxes but do receive benefits. Am I owed severance?

Individuals are often misclassified as independent contractors when they are in fact employees. It is important to determine the real classification in calculating adequate severance entitlements as employees are also entitled to vacation pay, bonuses, etc. Employees cannot be forced or requested to retire and retirement must be voluntary. Forced resignation or retirement is considered termination and can be a human rights violation.

Can an employer terminate an employee due to their age?

Employees cannot be terminated purely on their age as it is a human rights violation. Mandatory retirement is illegal in Ontario. Employees can be terminated based on their performance but should be given alternatives and options to improve.

If an employer has to terminate an older employee, what should they pay in severance?

Employees who are older and are terminated can expect more severance in comparison to a younger employee as age and the length of employment does factor into a severance calculation. Employers should expect that older employees would have more difficulty in finding future employment.

LEARN MORE
Severance Pay in Ontario

My employer has had me on a layoff for over a year and I don’t think I’m going to be called back. Is there anything I can do?

Employees do not have to accept a temporary layoff and can choose to treat the layoff as termination and pursue their severance entitlements. Employees who have been on a layoff for over a year are unlikely to be brought back by their employers.

Do I need a lawyer to get full severance? Can’t I just call the Ministry of Labour?

The Ministry of Labour can only advise employees on their minimum entitlements and not their full severance entitlements. Employees who have recently been terminated should contact an employment lawyer before accepting a severance offer. Pursuing adequate severance can be done for up to two years after the initial date of termination however legal advice should be sought as soon as possible.

Can my employer let me go for any reason?

Employers can terminate employees for virtually any reason as long as it is not discriminatory or a reprisal. Adequate severance must also be offered to employees who are terminated without cause.

Will my employer be able to change my rate of pay whenever they want?

Employers are permitted to make minor changes to the terms of employment of an employee’s position however significant changes can lead to constructive dismissal. Employees should look closely at the terms of their employment agreement for clauses that allow employers to make changes like a reduction in compensation, or relocation, demotions, etc.

Does your employer have legal cause to fire you if your LTD benefits have been ended by the insurer?

Employees are only permitted to return to work with the approval of their treating medical physician despite the denial or ending of long-term disability benefits. Employers cannot penalize or terminate an employee due to their illness or while they are on medical leave.

LEARN MORE
Long-term Disability Claims FAQ

If I have been employed for less than a year, do I still get severance?

Employees do not have to be employed for a certain amount of time in order to qualify for severance pay upon termination. Employees are owed severance as soon as their employment begins. Short-service employees often receive disproportionately more severance than long-service employees.