Employment Law Show 640 Toronto – S9 E93

Episode Summary

Shattering severance myths, probation periods, short-service employees, and more on Season 9 Episode 93 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Toronto 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 supervisor for a manufacturing company for over 20 years. Due to COVID-19 health measures were put in place, which I followed. Over some minor errors, I was terminated and not offered severance. What can I do?

Terminating an employee for cause is extremely difficult to prove and employees cannot be terminated for cause due to minor mistakes and errors. Employees in this situation can be terminated but are still owed severance and should not wait too long to speak to an employment lawyer and pursue their rights. Employees who do make errors should own up to their mistakes with their employers.

I work for a federally regulated transportation company. I was not paid recently for a statutory holiday. Is this right? Can my employer withhold pay?

Employees who feel their employers have not compensated them adequately should first communicate their concerns with their employer. Employees who feel they are still not being paid properly are able to file a complaint with the Labour Board.

I’ve been a bookkeeper for a small company for 30 years. I was let go without cause recently but was only offered 8 weeks severance. Last year I was made to sign a new contract. Is this legal?

While employees should be wary of signing a new contract, as it can contain a termination clause, in many cases the clause will not be enforceable. Employees should contact an employment lawyer before signing any agreement and if terminated, in order to determine adequate severance.

When fired, are employees only owed a week of severance per year of employment?

The Employment Standards Act details the minimum entitlements that calculate severance at a week per year of employment. Full severance entitlements are based on the length of employment, the age of an employee, the position, etc. Employees unsure of their severance entitlements should speak to an employment lawyer.

After my probationary period ended, I was asked to sign a new contract to extend my probation period. Is this legal?

Employers are able to enact a probationary period and can extend it however it must be done in good faith. Employers who have not acted in good faith owe their employee’s severance entitlements. In some cases, short-service employees can receive comparably more severance than long-service employees as they make face difficulties in obtaining future employment.

My employer says I was fired for cause so I’m not owed any severance. Is this true?

While employees who have been terminated for cause are not owed severance, many employers wrongfully dismiss employees for cause. In order to properly terminate an employee for cause, employers have to prove that they have taken necessary disciplinary measures to address the employee’s behaviour, as well as the fact that there are no alternatives other than a termination due to the serious nature of the employee’s misconduct. Simple errors and mistakes cannot be used as reasons for termination.

Does being on contract negate severance entitlements?

Many employees are misclassified as independent contractors when they are in practice actually employees. Misclassified individuals are owed severance if they do not control many central aspects of their job. Employees who are on a fixed-term contract are owed severance if their employment ends earlier than the initial length of the contract.

Three of my contracts were taken away leading to a forty percent pay decrease. My employer is not responding to any emails or phone calls. Is this constructive dismissal?

Employees do not have to accept a significant change to the terms of their employment. Reductions in compensation of more than fifteen percent can be considered a reason for constructive dismissal. Employees should try to communicate their concerns with their employer in writing and contact an employment lawyer to pursue their rights.

Do short-service employees receive severance?

Short-service employees are entitled to severance and in some situations can be owed comparatively more severance than a long-service employee. In many cases, short-service employees are not offered severance by their employers.

WATCH TO LEARN MORE
Employment Law Show Season 4 – Severance Myths During COVID-19

My employer is threatening to terminate my employment if I’m not vaccinated by the end of the month. What can I do?

In most cases, employees who are terminated as a result of vaccination status would be owed severance upon termination. There are few exceptions in which an employee would not be owed severance due to their vaccination status as there are only a few sectors in which there are government mandates.

I received a nasty performance review from a supervisor who has publicly humiliated me in the past. What can I do?

Employees in this situation should document all incidents in writing of the incidents in question, and communicate their concerns to the necessary parties at the workplace. Employees who do not agree with performance reviews should be honest about the criticism.

I’ve been on a layoff since April of last year and have been told by my employer they don’t know when I can return to work. What should I 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 do wish to accept a layoff for a short amount of time should communicate their acceptance and terms in writing to their employer. Employers do not have the ability to legally lay off employees despite the pandemic.

I’ve been denied a big bonus this year for no reason. Can I claim constructive dismissal?

Employees cannot claim constructive dismissal if they are denied one bonus as the fundamental terms of employment have not changed despite the amount of the bonus. Employees in this situation can bring an action for breach of contract and should contact an employment lawyer.

My wife is returning from maternity leave and is being asked to report to the person who filled her position. What can she do?

Employees cannot be penalized or discriminated against due to pregnancy or taking maternity leave. Employees who are returning from maternity leave must be given their original position and if that is not possible, a comparable position to the job they previously had. Employees can also not be demoted by the employer without their consent and can be the reason for constructive dismissal.