What Employers Should Never Do | Employment Law Show TV – S4 E11

Episode Summary

WHAT EMPLOYERS SHOULD NEVER DO, new employment contracts, calling in sick, and more on Season 4 Episode 11 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.

Episode Notes

Employee fired for not finding replacement

If I call in sick to work, do I have to find a coworker to take my shift? My boss is firing me because I didn’t find somebody to cover for me.

An employer can ask an ill employee to find a coworker to fill their shift. If the employee fails to find a replacement, it is the employer’s duty to locate a fill-in. An employer can’t fire an employee “for cause” if they fail to secure a replacement. They can let the employee go without cause, but must provide a severance package. The definition of severance pay encapsulates aspects of provincial and common law.

Segment starts at 2:00

CALL: Employee asked to sign new contract

I have been working for the same company for 26 years without an employment contract. The owner is now passing the business on to his son, and wants me to sign an employment contract, which I refused to do. Now they are making my job and life extremely difficult. Where do I stand?

You should not sign a new employment contract before you have an employment lawyer review the contract. It may contain terms and clauses that are unfavourable to you. Your employer cannot punish you for not signing a new employment agreement. They do not have the right to terminate you “for cause” if you fail to sign. If you are let go without cause, use the Severance Pay Calculator. Once you get an idea of the severance you may be owed, contact us.

Segment starts at 4:59

Fired for cause due to lateness

I was recently terminated for cause after arriving late for work. I was never late during my 18 months with the company. My employer said that I am not entitled to any notice or severance pay, or even EI. Did he have the right to fire me?

An employee has an obligation to arrive at work on time. An employer cannot fire an employee “for cause” if they show up late. A termination for cause should be reserved for the worst offenders in a workplace. An employee must receive severance pay if they were let go due to tardiness. Use the Pocket Employment Lawyer to find out if your employer has cause to fire you.

LEARN MORE
• How do you calculate severance pay?
• Severance Pay Ontario

Segment starts at 8:13

What Employers Should Never Do

1️⃣ Employers should never assume that severance is 1 or 2 weeks per year

Employers very often assume severance is only one week per year of service. There is no rule about severance being one week per year of service unless an employee signs an employment agreement that limits their entitlements.  If an employer doesn’t know and assumes they owe an employee a week per year, they are wrongfully dismissing the employee.

Segment starts at 13:09

2️⃣ Employers should never ignore allegations of workplace harassment or bullying

Many employers don’t know how to address workplace harassment, and some ignore it. If an employee brings an allegation of harassment, the employer must take it seriously. If they can’t investigate it, they can bring in an outside investigator to figure out what actually happened. If it is determined that there was harassment, the employer has to take measures to fix that problem. An employer has an obligation to provide a healthy and safe work environment.

Segment starts at 14:20

3️⃣ Employers should never fire an employee while they are on medical leave or maternity leave

It is illegal to let someone go because they are sick, pregnant, or a parent taking parental or maternity leave. If your employee is on a medical leave, assess their ability to return to their job when that leave is over. If you are an employer, don’t be too proactive and determine that you won’t need the employee in six months. If you do let someone go because they are on a leave, that is a human rights violation, and it will cost you.

Segment starts at 15:59

4️⃣ An employer should never misclassify an employee as an independent contractor

The law determines whether someone is an employee or an independent contractor. If someone is an employee in the eyes of the law, they have to be treated as an employee. People believe that because they sign a contract that says they are an independent contractor, that makes them an independent contractor. The problem for a company is that if you’ve misclassified the employee, you may be liable for back wages, overtime, vacation pay, and severance. It’s not a good idea for companies to misclassify their employees as contractors because there are consequences.

Segment starts at 17:01

5️⃣ An employer should never terminate an employee “for cause” if they haven’t built up a case

Employers often equate an employee doing something wrong with termination for cause. The fact that an employee did something wrong is not enough. If you’re an employer, the way you could potentially terminate someone for cause is by building up a case: engaging in discipline, giving the employee warnings, giving them an opportunity to improve, and documenting that process. Build up your case, and then maybe you can terminate for cause. In most terminations for cause, it should actually be without cause in the eyes of the law, and severance has to be paid.

Segment starts at 18:55

CALL: Employee forced to sign termination letter

My wife has been laid off by a large retailer after 4 years with the company. They are closing her location and planning to reopen elsewhere a year from now. They had her sign a letter on the spot saying she will not receive any severance pay outside of her final paycheque.

When an office or work location closes, laid-off employees must receive severance pay. The amount of severance is based on factors that include age, seniority, position, and income.

Learn More
Severance pay when a business closes

There is a common myth that concerns severance offers. An individual has the right to take some time to review a termination letter or offer. An employer cannot force an outgoing employee to sign a severance offer on the spot. A company may claim that the offer will expire the moment you leave the premises. The truth is that your rights to severance pay under common law do not expire within hours or days. You have 2 years after termination to pursue your severance entitlements.

Segment starts at 20:17

CALL: Bullying and harassment in the workplace

I’ve been bullied at work for the past 4 years by a long-term employee who has been at the company for 25 years. He has a history of workplace harassment. HR has been aware of his behavior for a long time but refuses to take any action against him. What are my options?

Employers should not ignore instances of harassment or bullying in the workplace. They have a duty to investigate all allegations and take appropriate steps to resolve any issues. In this case, the company appears to be ignoring the problem. The employer’s inaction is creating a toxic work environment. When an employee feels that they can no longer tolerate a poisonous workplace, they can pursue a constructive dismissal. The constructive dismissal lawyers at Samfiru Tumarkin LLP can help individuals get the compensation they deserve.

Segment starts at 23:47

Employee seeks to observe religious holiday

Can I ask my employer for time off work to observe a religious holiday?

An employee can take time off work if they have a legitimate religious belief or requirement. The Human Rights Code requires a company to accommodate an employee for religious reasons.

Learn More
Dishwasher wins $28M case of religious discrimination
Conflicting religious beliefs and human rights

Segment starts at 25:58

Next Episode: Employment Law Show S4 E12 – Human Rights Violations in the Workplace

Previous Episode: Employment Law Show S4 E10 – Social Media in the Workplace