Severance Myths During COVID-19 | Employment Law Show TV – S4 E22

Episode Summary

SEVERANCE MYTHS DURING COVID-19, why you don’t qualify for CERB if you simply don’t want to work, and more on Season 4 Episode 22 of the Employment Law Show with employment lawyer Lior Samfiru, Partner at Samfiru Tumarkin LLP.

Watch above to discover your workplace rights and learn everything you need to know about employment law in Ontario, British Columbia and Alberta, on the only employment law show on both TV and radio in Canada. **Aired April 18, 2020**

Episode Notes

Applying for CERB

Can I get the CERB if I don’t want to work?

To get CERB, it can’t be your decision, it has to be your employer’s decision. Deciding not to work does not qualify you for CERB. If you apply and you don’t qualify, you may have to pay the money back.

Segment starts at 2:07

Temporary Layoff due to COVID

I have been temporarily laid off due to COVID-19. Can the company decide to lay me off permanently? How would that impact my termination and severance pay? I am 59 and have worked there for 24 years.

A temporary layoff actually allows you to treat it as a termination right away. If you do that, you would be entitled to your severance. However, if you accept the layoff, and it eventually becomes a termination, you would get your severance then. But you don’t lose your severance just because you’re on a layoff. Learn more about temporary layoffs and severance pay.

Segment starts at 4:20

Older employee forced to return to work in COVID

My job requires me to be in very close proximity to people. When I was hit by a headache a few weeks ago, I opted to self-isolate. Can they force me to return to work? I’m in my 70s and don’t feel safe.

If your workplace is taking precautions, and you decide not to go to work because you still don’t feel safe, your employer could consider you to have resigned. However, if your workplace is really unsafe, you have the right to refuse unsafe work due to the coronavirus. An employer has obligations under the occupational health and safety legislation to maintain a safe and healthy work environment. The Ministry of Labour would have to be called in to investigate.

Segment starts at 7:44

SEVERANCE MYTHS DURING COVID-19

1️⃣ MYTH: You only receive 1 or 2 weeks per year spent at the company

FACT: Severance pay is actually based on a number of factors, and can equal months per year worked in many cases. An employment lawyer can properly calculate your severance pay.

Segment starts at 11:32

2️⃣ MYTH: You’re not owed severance because there was a good reason to terminate your employment

FACT: Termination for Cause is very difficult for an employer to successfully claim when laying off an employee. A company often resorts to this type of termination in an effort to avoid paying severance.

Segment starts at 13:40

3️⃣ MYTH: Short service employees get a very small amount of severance

FACT: Short-service employees are often owed a disproportionately large amount of severance pay.

Segment starts at 14:33

4️⃣ MYTH: You lose your rights if you don’t accept an offer by an employer’s severance pay deadline

FACT: You have 2 years from the moment of termination to pursue your full severance pay. A severance pay deadline imposed by your employer is largely meaningless.

Segment starts at 15:54

5️⃣ MYTH: A company doesn’t have to pay compensation if they close down for a while

FACT: A business must still observe its severance obligations if they close down, temporarily or permanently. You will not be able to pursue your severance entitlements under common law if a company declares bankruptcy.

Segment starts at 17:30

Maternity Leave and COVID

I am pregnant, and currently off work due to childcare issues. If I am off for further notice due to COVID-19, how will it affect my maternity leave?

If you were looking to get regular EI benefits, if you are laid off now you could instead apply for the CERB and that won’t impact your EI benefits. The same should apply to maternity benefits. If you can’t work because of the virus, you shouldn’t be penalized for not having worked enough hours to qualify for maternity benefits. Learn about your maternity leave rights in Canada.

Segment starts at 19:20

Hours Cut due to COVID-19

I have been told that my hours are going to be cut back due to coronavirus. I’ve worked for the same company for 17 years servicing hospitals. If they are cut back, can I treat this as a constructive dismissal?

In a normal situation, if your hours of pay have been cut, you can treat that as a constructive dismissal. A constructive dismissal happens when your employer changes the terms of your employment in a negative way, and as a result you can pursue your termination entitlements. If your hours were cut back due to coronavirus that may be a constructive dismissal.

Segment starts at 22:52

American-based Companies & Severance

I work for an American-based company that is having a difficult time right now, and may close. If they declare bankruptcy, am I still entitled to severance pay?

If the company is in fact bankrupt, unfortunately, you will not get your severance or termination entitlements. However, a company that is struggling is not the same as bankruptcy. If your employer is struggling, they still owe you severance pay.

Segment starts at 25:09

Severance More Than Week per Year

My employer is asking employees to come forward to take a voluntary layoff. They say that if enough don’t come forward, they will begin firing people and give them a week per year severance packages.

If you are taking a voluntary layoff you can’t pursue that as a termination. If your employment is terminated, the company doesn’t get to decide that you only get a week’s pay per year of service. The law decided what you’re owed, based on your age, position, and length of employment. Learn more about your right to a fair severance package.

Segment starts at 26:00

Independent Contractor and COVID-19

I’ve worked as a contractor for a mid-sized company for 4 years. I’ve just been told that they no longer need me due to the impact of COVID-19. Am I owed anything, or will I have to make do with the CERB payments?

The reality is you are most likely an employee, and employees are commonly misclassified as independent contractors. If you’ve been misclassified, then you are an employee, and if the company decides to let you go, and you are owed severance.

Segment starts at 27:31

Next Episode: Employment Law Show S4 E23 – Employment Law Questions During COVID-19

Previous Episode: Employment Law Show S4 E21 – COVID-19: Call an Employment Lawyer