Employment Law Show 640 Toronto – S9 E97

Episode Summary

Legal concepts everyone must know, layoffs, providing proof of vaccination, and more on Season 9 Episode 97 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 without and for cause, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, temporary layoffs and more.

Listen to the Episode

Episode Notes

I’ve been on a layoff since spring of 2020. Last week I got a letter from my employer saying I had to get the vaccine by November or I will be let go.

The fact that you were put on a layoff a year and a half ago – that’s not allowed. That’s a termination. You can choose to treat the layoff from the spring of 2020 as a termination and get severance. Now your employer is saying that if you don’t get the vaccine, your employment will be terminated for cause. There is no basis for them to ask an employee who is not working to get the vaccine. Regardless of that, not getting the vaccine does not justify a just cause termination.

I’m part of a union, and I’ve decided not to get vaccinated. My employer is putting me on a leave without pay. If I am let go, will I get severance?

Unionized employees don’t get severance in a situation like that. What the union can do for you is fight for reinstatement, with back pay. But the union has to do it, a lawyer can’t help you. If the union decides not to fight for you, unfortunately, you don’t have many options at that point.

LEARN MORE
• Mandatory vaccinations and rights for Unionized Employees

I’ve been working at a brokerage for 14 years. I’m 69 years old. They just sold to another business. Can they let me go because of my age?

They can let you go, but not because of your age. But if they do let you go, it’s not going to be easy to show that it’s because of your age. For example, if they hire everyone back and you’re the only one that they don’t hire, and everyone else is much younger than you, then it potentially looks like your age is the reason. That’s a human rights violation, that’s illegal. But if they hire half the people and half the people they don’t as an example, it’s going to be very difficult to show that it’s because of your age.  That said, if you’re out of a job, you’re owed severance, and for you that could be around 16 months of compensation.

I work for a school, and I sign a new contract every year. This past summer I didn’t get a new contract, and I didn’t hear from the school. Did I have any rights here?

The school year has already started, so it’s clear that you’ve been terminated. Because you typically signed back-to-back contracts, you’re considered a regular indefinite employee. Since you were terminated after 10 years of service, and you’re in your sixties, you’re probably owed around 14 to 15 months of severance. It’s important to remember if you’ve signed multiple contracts, you’re an indefinite employee, and that’s especially important when it comes to severance.

LEARN MORE
• Employee vs. Independent Contractor Misclassification in Ontario

I’m a teacher, and I’m in a union, and I don’t want to get the vaccine. If I accept a contract for additional hours and am no longer part of the collective agreement, can I hire a lawyer?

Once you take the additional hours and are no longer covered by the collective agreement, you are then in an agreement directly with the educational institution. Should something then happen, and you are let go or suspended, then absolutely, yes, you can hire a lawyer.

My employer asked me to upload my vaccination proof and to a third-party server. Is that legal?

It’s certainly appropriate for you to ask your employer what safety measures are being taken so no one else can access your medical information.  But ultimately, I don’t want you to think in terms of legal or not. If your employer is drawing this line in the sand, consider that if you don’t provide this information, you’re probably going to lose your job, or be suspended, so you have to ultimately decide what is better for you. But asking those questions is important if your employer is not going to protect your privacy and then they’re going to let you go. You’re going to have an even stronger case for wrongful dismissal.

I’m a pharmacy worker, and early on in COVID-19, we were given $2 extra an hour. After four weeks the extra pay quietly stopped.  Can we inquire why it stopped?

Yes, you can inquire with your employer about why it stopped.  The real question is, is there anything you can do to force your employer to give it back if they refuse. The answer is no. The first problem is a $2 decrease in pay probably doesn’t rise to a constructive dismissal. The second problem is the decrease that happened a while ago, so by now, you are seen as having accepted it. Because of those reasons, there’s not going to be much that you can do to force your employer to either pay you damages to reinstate it or to pursue a constructive dismissal.

My employer created an incentive program, whereby if we work X amount of overtime we get a $50 or $100 gift certificate. But they’re putting that amount on our paycheck as income. Can they do that?

No. First of all, if you work overtime, which for most people is anything over 44 hours a week, you get time and a half. They have to pay you that in dollars, not in gift certificates. As well, a gift like that should not be included as income on your pay. This may well be a breach of the Employment Standards Act. You may want to go to the Ministry of Labour and say my employer is not paying you overtime properly.

WATCH MORE
• Overtime Pay in Canada: Employment Law Show

Is eight months of severance enough for a 60-year-old salesperson with 15 years of service?

No, it’s not even close. Remember the factors that go into severance: age, position, and the length of employment. For you, that amount probably is 14 to 16 months, depending on your income levels. If it’s going to be difficult to replace that job, it could easily be 18 months as well.

Legal Concepts That Every Employee Must Know

#1) the law can’t stop your employer from doing something

The law cannot stop anyone from doing something. There’s no mechanism where you actually can say, well, look at that, have to stop doing this as per Section 12 of the Employment Standards Act. No, the way the law works when it comes to employment law is to compensate employees if an employer is doing something they’re not supposed to do. Unfortunately, the law can’t stop your employer from doing something, even if it’s not legal.

For example, if your employer tells you that you will be let go unless you get vaccinated, you will lose your jobs, but you’re going to be owed compensation, and you’re going to be owed damages. But you will lose your job because you can’t stop your employer from actually doing something.

#2) If it’s not in writing, it doesn’t exist

These are words to live by, but especially when it comes to your workplace and your workplace rights. If you get a promise from your employer, if it’s not in writing, it doesn’t exist. If you file a complaint and you tell your employer, I’m triggering my right to file a complaint about harassment. Again, if it’s not in writing, it doesn’t exist. So, always, always get something in writing.  If your employer won’t give it to you in writing, no problem – you put it in writing. Send an email to your employer confirming what happened and what was said. If you have that you’re protected. That has so much value and so much power.

#3) There is no such thing as “job security”

The reality is that an employer can generally let you go at any time and again, pretty much for any reason, as long as severance is paid. You may be the best employee; you may have worked the longest you may have had the best performance reviews. That does not mean that you have job security. It does not mean that the employer must keep you. The employer can let you go because and they feel like it. That’s not right, ethically or morally. But it is legal, as long as they pay you compensation and severance.