Employment Law Show 980 CKNW – S5 E10

Episode Summary

Examining severance scenarios, gaps in service, temporary layoffs and more on season 5 episode 10 of the Employment Law Show on Global News Radio 980 CKNW in Vancouver.

Listen below as 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 severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, and more.

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Episode Notes

Can my employer decide to end my modified duties after returning from disability leave?

Your employer must provide workplace accommodation if your doctor requires you to work on modified duties. They cannot arbitrarily end your modified duties if you doctor does not agree.

Can my employer hire for my position while I’m on a temporary layoff?

Your employer has the right to hire somebody for your position while you are on a layoff. However, it is illegal for your employer to put you on a temporary layoff in the first place, without your permission. The layoff can be treated as a constructive dismissal. You can leave your job with severance pay. Severance pay in BC is calculated by reviewing numerous factors.

Can I seek advice from a lawyer privately if I am part of a union?

This this case, only the union can act on your behalf. A lawyer can’t intervene to advance your interests. When you’re part of a union, they are your representative, and there are no exceptions to that.

If I was let go and offered severance, am I still entitled to my annual bonus?

You are still entitled to your annual bonus as part of your termination entitlements, but if you accept a severance offer that does not include the bonus, you can no longer get the bonus. When it comes to your termination entitlements, you must be paid based on your total compensation: salary, commission, bonus, benefits, car allowance, etc. But if you accept a severance package that does not include those things, you forego your opportunity to receive it.

How is severance normally calculated?

The general rules of severance dictates that your severance is calculated based on a few factors: your age, your position, and the length of your employment. Severance usually maxes out at 24 months. Even if you only work for a  short amount of time, or even if you are part time, you may still be entitled to severance.

Can you still get severance even if you are a short-service employee?

Short-service employees are treated disproportionately better than long-term employees. Even if you work for only a few months, you could still get severance for several months.

If you’re on a temporary layoff, can you still get severance?

Even with a temporary layoff, you can require the company to still pay severance. In the eyes of the law, a temporary layoff is still a termination. You can treat the temporary layoff as a termination and force the company to pay you severance. It could be as much as 24 months pay.

If I was terminated a couple years ago am I still entitled to severance?

If you’re within the termination period, which is two years, you may still be entitled to severance. However, if it was a union position you are not entitled to a severance.

Do I get severance if a company recruits me from another job?

Not only are you owed a lot of severance if you are recruited from another job, but the severance that you’re owed would recognize the time you had with that previous employer. If you’re recruited away, and if it doesn’t work out and they let you go they may have to pay your severance based on the time you had with the previous company.

If my employer presents me with a new employment contract that says they can terminate an employee for any reason, do I need to sign it?

The problem with this is that the contract will also say that they can terminate you for any reason and only pay you for your minimum entitlement. The employer cannot force you to sign a new contract, although they can fire you for not signing it, but in that case they will still have to pay you the full severance you are owed.

Do I get severance if I have gaps in service?

If you work for a company for a number of years, and leave the company, but later get hired back, your severance would still be calculated on the total number of years of service. Even if your years of service are not consecutive, you still get severance based on all your time with the company.

Am I entitled to severance if I sign an employment contract that says they can lay me off temporarily?

Only in a permanent lay-off situation would you be entitled to severance. If the temporary lay-off becomes permanent, then you would absolutely be entitled to severance.

If you lose your job during a bad economy or a pandemic, are you still entitled to severance?

Your employer still has to pay severance during a pandemic. You actually would be entitled to more severance than usual if it’s a bad economy or during a pandemic because it could potentially take you longer to find a job.

I have been laid off after working in a sales position for three years. How much severance pay am I owed?

Your employer may owe you as much as 3 months’ pay after 3 years of service. If, for example, you are in a sales role and make commission as part of your compensation, your severance is based on your average earnings, including commission.

If you suffer from a disability, are you entitled to more severance?

If you suffer from a disability, you may be entitled to more severance because it could take you longer to find a job, to find an employer that can accommodate you, or a suitable role. But what if they company let you go because of a disability? That would no longer entail just severance, but other entitlements, because this could be a human rights violation.

If you work for a non-profit or not-for-profit do you still get severance?

Non-for-profit and no-profit employers still has to pay severance based on the same laws and same rules. They do not get special treatment because they are not-for-profit.

If you were let go because of your job performance, can you still get severance?

In this case you would still get severance, even the same severance amount as if your job performance was excellent. Bad performance does not equal no severance.

If the business you work for has been sold and you’re now out of a job, do you still get severance?

If you lost your job because the company was sold, you can still get your full severance. Even if you’re offered a job with the buyer of the company, and decide not to take it, you’re still owed severance in that situation.

My employer let me go a week after I returned from a medical leave. I just found an add online where they posted for a replacement for me. Can they do this?

If you’re let go and you have a medical condition, but the company is looking to replace him, it looks like they are replacing him because of the medical condition, and that could potentially be a very serious human rights violation. This could mean additional damages that you are owed.

I haven’t received a pay increase in more than 5 years. Does my employer have to give me an increase?

An employer is not legally required to provide pay raises. Unless there is a contract in place that requires them to provide a pay raise, the pay raise is at the discretion of the employer.