Overtime Pay in Canada | Employment Law Show TV – S4 E13

Episode Summary

Everything you need to know about OVERTIME PAY IN CANADA, fired over a BBQ sauce tweet, and more on Season 4 Episode 13 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

Fired for cause for complaining at work

I was fired for cause after I complained about the company’s holiday gift on my anonymous Twitter account. The gift was a $6 bottle of barbecue sauce. I wasn’t given any severance pay. Were they allowed to fire me?

Lior explains that a termination “for cause” is reserved for the most serious workplace misconduct. The fact that an employee has done something in the workplace that they should not have done does not automatically trigger a dismissal for cause. This extends to an employee’s activity on social media. Negative content that an employee posts online does not instantly trigger a for cause termination.

However, employee’s should be aware that they can be let go without cause for what they post on social media. In a termination without cause, the employer can let the worker go, but only if they provide an appropriate severance package. A wrongful dismissal occurs if the employee does not receive adequate severance pay. A wrongful dismissal lawyer can work to secure a fair termination package.

You can read more about the incident that Lior references at the top of this episode on our blog. We discuss the employee who was let go after a tweet about his barbecue sauce holiday gift, and what his employment rights are.

Segment starts at 2:12

CALL: Employee facing workplace harassment

My wife works at a condominium. She loved her job until the condo board changed and new members started making things extremely difficult. They’re trying to force her to quit. Is there anything she can do before it’s too late?

A company does not have the right to bully or harass its employees. Employees who are experiencing harassment should document the incidents in a journal or through emails. If the employee has substantial proof of workplace harassment, they may be able to quit their job with full severance pay. An employment lawyer can accomplish this through a constructive dismissal claim.

Segment starts at 5:24

Dismissed without adequate severance pay

I was fired unexpectedly by the VP this morning. She told me that the results of my team’s last project were “underwhelming.” I was given 7 weeks’ pay in severance. I worked as a manager for 7 years. Should I try to ask for my job back, or just take the severance package and move on?

Lior explains that an employer can let an employee go if that individual is not producing sufficient results. While the employee can legally be fired, they must be given their full severance pay under common law.

Use the Pocket Employment Lawyer to determine what your post-termination entitlements are.

Segment starts at 9:14

OVERTIME PAY IN CANADA (What You Need to Know)

1️⃣ Who qualifies for overtime pay?

• Employees who work more than 44 hours per week are owed overtime pay. Overtime pay is 1.5 times the employee’s regular rate of pay per hour. Managers are generally exempt from accessing overtime pay.

Segment starts at 13:15

2️⃣ As a salaried employee, am I entitled to overtime pay? How is overtime calculated for salaried employees?

• Salaried employees can calculate their overtime pay by diving their weekly salary by 44 to get their hourly rate. Multiply that number by 1.5 to arrive at the amount of overtime pay an employee should receive on an hourly basis.

Segment starts at 14:29

3️⃣ Can your employer make you work overtime?

• An employer cannot force an employee to work overtime if it falls outside of their regular hours of work. An employment contract may address rules surrounding overtime pay. The employee may have to work overtime if they have a history of doing so at the company.

Segment starts at 14:49

4️⃣ What if your employer doesn’t want you to work overtime, but you need to?

• If you legitimately need to work overtime to get your work done, the company must approve the request. The company cannot stop you from working overtime, and they must provide you with overtime pay.

Segment starts at 16:00

5️⃣ What should you do if you are not getting paid for your overtime hours?

• Keep track of your hours. You can file a complaint with the Ministry of Labour or Employment Standards Branch. You may also be able to treat this as a Constructive Dismissal and leave your job with severance pay.

Learn more about Overtime Pay in Ontario, how to determine overtime in Alberta, and overtime rights for workers in B.C.

Segment starts at 17:07

CALL: Severance pay for a contract worker

I worked as a consultant for a company for 3 years. The job was originally part-time before becoming a full-time position. I have been laid off and given 2 weeks’ pay. They never withheld taxes from my paycheque.

This individual’s scenario begs the question: were they an employee or an independent contractor? Only the law can determine what somebody’s relationship with a company is. That decision is not one that can be made by either the employer or the employee. We rely upon several factors to identify what that relationship should be. In this person’s case, it is extremely likely that he was an employee during his time at the company. His employer therefore owes him a fair severance package. Find out in seconds if you might be an employee or a contractor.

Segment starts at 18:46

CALL: Severance pay for long-service employee

I was given a termination letter that said I won’t have a job in 12 months. I have been working at the company for over 40 years. Should I sign the letter?

A company can give their employees advance notice of termination instead of severance pay. We refer to this concept as “working notice.” An employer can provide an employee with severance pay, working notice, or a combination of both. While they are free to choose one of those three options, the employer must ensure that the overall notice period is long enough.

In this individual’s case, they have been given a 12 month working notice period. While this amount of time may seem generous, it actually accounts for only half of what he should lawfully receive. Due to his age and length of service, he may be in line to receive as much as 24 months’ pay. He should receive as much as 12 months of severance pay following his 12 month working notice period.

Watch season 3 episode 26 of the Employment Law Show to learn more about working notice of termination.

Segment starts at 23:24</em

Severance pay for a recruited employee

I was a senior manager at a telecommunications company before being let go 2 years after being recruited from another company. Shouldn’t my 15 years at the previous company be factored into my severance package?

A complete severance package must take multiple factors into consideration. One of those factors is whether or not an employee was recruited away from another company. The amount of time an employee spent at a previous company before being induced to join a new one must be factored into severance pay.

Segment starts at 26:47

Next Episode: Employment Law Show S4 E14 – Fixed-term Contracts

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