Employment Law Show 640 Toronto – S9 E96

Episode Summary

The 5 worst times for an employer to terminate an employee, let go for not getting vaccinated, signing a new employment contract, and more on Season 9 Episode 96 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto, the GTA, Hamilton, London, and across Ontario on the Employment Law Show. Lior shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, and more.

Listen to the Episode

Episode Notes

I was let go from my job because I chose not to be vaccinated. Is that a termination for cause?

If you lost your job because you didn’t get the vaccine, it is not a termination for cause, unless you’re working in an industry where there’s a government mandate in place. In your case, it would be a termination without cause. The distinction is important, because, without cause, you are owed your full severance, which can be as much as 24 months’ pay.

If an employee can’t get vaccinated for legitimate medical reasons, why aren’t some employers accepting these medical exemptions?

If an employee has a doctor’s note saying that they can’t get the vaccine for medical reasons, that is ultimately all they need. The doctor is not required to say what the medical condition is, whether it’s an allergy or some other issue. An employer that ignores that doctor’s note is in violation of human rights laws. That said, you can’t physically stop an employer from letting an employee go, but if that happens, there’s going to be damages that the employer has to pay.

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I was offered a promotion, contingent on me signing a new employment agreement. Do I have to choose between getting a promotion and signing away my rights?

The reality is that an employer is not required to offer someone a promotion. Because of that, if your employer chooses not to give you a promotion for whatever reason, legally, there’s not much that can be done about that. You probably did the right thing, rather than giving away what could at some point be tens of thousands of dollars in severance.

Are companies allowed to ask you to vaccinate or to prove that you’re getting weekly COVID-19 testing done?

The real question is not ‘are they allowed to do this?’ The real question is what happens if you don’t do it? If you decide not to do what they are asking, you will lose your job or they will place you on an unpaid leave. If that happens, that would be considered a termination without cause and you would be owed severance. Ultimately, you have to decide whether you’re willing to lose your job. If you’re not, then your options are either to do the weekly testing or get the vaccine.

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My employer gave all employees a deadline to get vaccinated. If I’m not going to get the vaccine, should I tell them now?

If you tell your employer now that you won’t be getting the vaccine, one of two things will happen. Either they’ll put you on a layoff or let you go now, or they’ll wait until the deadline to let you go. The fact that you’re telling them now doesn’t mean they will do something now. If you leave voluntarily before the deadline, that would be considered a resignation, and you will not get any severance.

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My wife was recalled from a layoff in August, but couldn’t return for medical reasons. Has she lost her right to be recalled?

No, she didn’t lose her right to be recalled. She had a medical reason for not returning to work, so she could be off as long as she needed, and there’s nothing wrong with that. I would wait another week and have her follow up with the employer. If within that week she doesn’t hear back from them she has two options. She can consider her employment as having been terminated. Or she can contact me, and have my firm send them a letter, and we will see how fast they move. They’ll bring her back very quickly.

I work for the municipal government, and we have a deadline to get vaccinated. We are in a union, are we still entitled to severance?

A unionized employee doesn’t get severance in this situation. What a unionized employee does have a right to do is to get reinstated if they’ve been let go inappropriately. The only one that is allowed to help you to do anything in this situation is the union. If the union says that they agree with the employer, and they won’t do anything, then, unfortunately, there’s nothing that you can do on your own. You can’t hire me or another lawyer.

The 5 Worst Times for an Employer to Terminate an Employee

1) When the employer is struggling employer is struggling financially but still decides to let an employee go because the employee did not vaccinate.

A lot of employers haven’t thought this through. They don’t realize that if they let people go, they’re going to have to pay them severance – and that could be a lot of money. A lot of these employers are not going to incur this significant liability if you let go, for example, five people and you have to pay each of them on average, $50,000 in severance. That’s a huge financial liability if you’re already struggling. An employer has to really think about whether or not that’s necessary for their business because that financial liability could potentially put the employer under.

2) When an employee is coming back from a medical leave

An employer cannot – and should not – ever let someone go because they’re sick, because they’re taking a leave, or when they’re coming back from a medical leave. If you have a doctor’s note that says that you need to be off, the employer doesn’t have much leeway. At that point, they have to let you take that leave, whether it’s a week, a month, or a year.

When you’re ready to return to work they have to make all efforts to try to bring you back, if at all possible. In some cases, it may not be possible. If the employer feels that a person going off on a leave is going to be a big pain, and they decide to let them go – that’s a human rights violation. There could be other damages as well.

3) When an employee raises harassment allegations against the boss or a coworker

We all have a right to a safe and healthy work environment, and it’s the employer’s obligation to make sure that you have that safe work environment. If you complain about workplace harassment, your employer has an obligation to investigate it, they have to take it seriously, and they have to remedy the problem. They absolutely cannot punish you because you brought up that harassment complaint. If an employer does retaliate against the employee, the law is going to come down pretty hard on them.

If you are being harassed, mistreated, or bullied in the workplace, you should feel comfortable and confident to talk to your employer, whether it’s HR or the owner, knowing that nothing bad can happen to you. And if you’ve tried that, and something did happen, call our firm and we will help you.

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4) Right after you reduce employee compensation or get them to sign a new contract of employment

Employers can offer employees new roles within a company, provided they sign a new contract of employment. Sometimes those new employment contracts can have terms in them that limit future severance. If an employee signs the new contract and is let go a month later, they could lose out on tens of thousands of dollars in severance. The difference between having signed an agreement that limits your entitlement and not having signed one could be massive. The difference could be an extra 20 months’ pay.

The fact is that our laws punish employers that clearly only got the employee to sign an agreement to save money. That’s bad faith, and that’s not something an employer can do. That agreement has to be entered into in good faith.

5) Right before an employee is due a large bonus or commission payment

The law says that if you’re letting someone go to avoid paying the money that you owe them, that’s bad faith. You’re going to have to end up not just paying that bonus, you’re going to have to pay additional damages. That is a very bad time to let an employee go, and a bad way to let an employee go.

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