Employment Law Show 980 CKNW – S3 E23

Summary

Dependent contractors, returning from medical leave, fired after giving 2 weeks, severance for superintendents, bonus and severance pay, and more on season 3 episode 23 of the Employment Law Show on Global News Radio 980 CKNW in Vancouver.

Employment Lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in British Columbia on the Employment Law Show. Lior shatters myths and misconceptions about B.C. severance pay, terminations, workplace harassment and discrimination, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors in B.C. and more.

What We Covered

Severance Pay for Apartment Building Superintendents

2:04 – An older individual had worked for 5 years as a superintendent at a building. As part of his compensation he was allowed to live in the building, rent free. The property manager called him into the office one day and fired him without cause. The superintendent was given 6 weeks’ pay as his severance package. He was also asked to move out of his apartment in two weeks. Not only was the individual out of a job, he also had nowhere to live.

The individual contacted Samfiru Tumarkin LLP, where he discovered that, based on multiple factors (including age, time spent on the job) he was actually owed somewhere around 6 months’ pay. The Vancouver employment lawyers at Samfiru Tumarkin LLP are also negotiating a better position on his living arrangement: Either the property management company allows him to remain in the apartment building for 6 months while he looks for a new living space, or they pay him the equivalent of 6 months’ rent.

A Bonus as part of a Severance Package

5:17 – A bonus can be incorporated into a severance package when an employee is let go from their job. If, for instance, an employee earns $10,000 each year as part of a bonus, and they are terminated from their job around halfway through the year, they would earn a prorated portion of that $10,000. The employee would also be owed the bonus they would have earned during the period of time covered by their severance payments.

I was fired immediately after giving my employer advance notice of my resignation. Am I owed any severance pay?

6:42 – An employee decided to leave his employment to return to school. He gave his employer 12 weeks’ advance notice of his resignation, which he believed was extremely fair. To his surprise, he was pulled into a meeting later that day and told him that he was been terminated immediately due to the fact that he had given them notice.

A few days later the employee grew concerned after his employer failed to provide him with his accrued vacation pay. He contacted Samfiru Tumarkin LLP, where he discovered that he was also owed 12 weeks’ of severance pay for the amount of time that he said he would continue to work for the company.

PocketEmploymentLawyer.ca and when You Should Use It

10:22 – Lior Samfiru and John Scholes discuss the Pocket Employment Lawyer and why the interactive resource should be the first thing you consult if you lose your job, changes are made to your employment, something happens in the workplace or your long term disability claim is denied or cut off by the insurance company. Lior called it his “mini-me”.

How long can someone be away from work for a medical reason?

12:37 – You can be off work for as long as you need to be, so long as your doctor says you cannot work. The amount of time you need to be off may be a week, a month or even a few years. Your time of work overrides any policy the company may have.

I am having trouble with one of my employees. How can I get rid of them? How do I terminate an employee?

13:51 – An employer in the trades is experiencing a problem with an employee who has served many years with his business. He is developing a poor attitude and is beginning to take an increasing amount of time off work. The employer can no longer count on this employee during busy times of the year. How can I get rid of him?

Lior told the caller that when an employer hires somebody new, they should have that person sign an employment contract. That employment agreement can contain a termination clause that allows the employer to terminate the employee with a minimal amount of severance pay. Employment agreements can be utilized in any industry or business, including a construction company.

Lior also suggested that the employer could terminate the employee “for cause”, however he would have to build up a strong case against the employee first before letting them go immediately without severance pay. The employer must provide warnings and discipline first before terminating their employment.

Can an employee take a medical leave while they are still in a probation period?

19:06 – The fact that an employee is still on probation doesn’t change the fact that they can’t work for medical reasons. What an employer should not do is terminate an employee who is on a medical leave, just because they have taken that medical leave. That decision could be deemed a human rights violation and would prove costly for the employer.

Lior told a caller to the Employment Law Show that the probationary period is put on hold while the employee is on their medical leave. The probation period resumes once more when the employee returns from their leave of absence.

Does an employer have the right to demand a diagnosis from an employee?

21:06 – An employer is not allowed to ask an employee what their diagnosis or medical treatment is if that employee is experiencing a medical issue and needs to take time off work.

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

23:37 – Lior explained what rights to employment a worker has while they are on a medical leave, and what happens when they return to the workplace down the road.

I was not approved for long term disability coverage. What should I do?

25:30 – If the insurance company denies your long term disability claim, you need to contact Samfiru Tumarkin LLP for assistance. LTD claim denials happen far too often. In most cases, the insurance company denies a claim merely to save money, not because you are not qualified to receive disability payments. Insurance companies are a business, with the goal of making billions of dollars for owners and shareholders. Our firm has helped thousands of Canadians access the compensation that they deserve when they are unable to work and need financial support during a medical leave.

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Why was my disability claim denied?

Ready to return to work from a medical leave

29:17 – When an employee is ready to return to work from a medical leave, they should let their employer know that they are well enough to return to the workplace. If the employee has been off for an extended period of time, they should give their employer at least a few weeks’ notice. A doctor’s note should also be provided to the employer, supporting the employee’s claim that they are well enough to work.

If the employee still suffers from some limitations due to ongoing medical issues, the employer must be made aware of those limitations so that they can make modifications to the worker’s job or to the workplace itself. An employer must comply with the employee’s requests, as every employer has the duty to accommodate. The company must make all efforts to return the employee to the same position they held before the medical leave, or a similar job.

What is a Dependent Contractor?

34:17 – A dependent contractor is somebody who is not an employee, but does most of their work for one company. They are financially dependent on one company for income. If a dependent contractor is terminated or let go from their job, they are owed severance pay from the company. Their severance pay would be calculated in exactly the same way as any employee, based on factors that include age, length of service, position, benefits, and so on.

Can a unionized employee sue for wrongful dismissal in British Columbia?

36:10 – A caller is currently on a disability leave from his job, and is receiving long term disability payments through an insurance company. He works in a unionized workplace. If he is let go from his job at any point, can he file a wrongful dismissal claim against the company through the union?

Lior explained that unionized employees cannot claim wrongful dismissal through the courts, as a non-unionized employee can. Unionized employees must rely on their union where severance package negotiations are concerned. Severance pay for unionized workers tends to be far less than the amounts a non-unionized worker is entitled to receive upon termination.

Lior did tell the caller that unionized employees do have the ability to file a claim against the insurance company if their long term disability claim is denied by the insurance provider.

Experiencing an Employment Issue?

Before you call a lawyer, use the Pocket Employment Lawyer to find out if you might have a case.

Use The Severance Pay Calculator to find out how much severance pay you may be owed upon termination.

Call 1-855-821-5900, email Help@EmploymentLawyer.ca or fill out a contact form to get help now from an employment lawyer in Vancouver.

Denied Long Term Disability? We Can Help.

Discover your rights when your Long Term Disability Claim is denied. Find out more here.