The Employment Law Show

When an Employer Can’t Let You Go | Employment Law Show TV – S4 E15

Episode Summary

WHEN AN EMPLOYER CAN’T LET YOU GO, embarrassed during termination, benefits of not having an employment contract, and more on Season 4 Episode 15 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 cause for being late to work

I missed a big meeting because I was late for work due to a delay on public transit. As a result, my employer let me go for cause. Can they do that?

An employer has the right to terminate your employment if you are late for work, even if the reason for being late is due to a transit delay beyond your control. It is generally an employee’s responsibility to get to work on time. What the employer likely can’t do in this situation is terminate your employment for cause. Termination for cause is reserved for the most inappropriate misconduct. Arriving late for a big meeting does not rise to the level of a dismissal for cause. An individual let go in this manner would be owed a severance package.

Segment starts at 1:38

CALL: Employee fired before retirement

After 25 years as a senior manager in a municipal government, I was let go before retirement. They told me that I wasn’t a good fit anymore, but I know the decision was politically motivated. They embarrassed me during the termination by marching me by coworkers as they saw me out the door.

If your employer treats you in an aggressive or unprofessional manner during the termination process, they may owe you additional compensation on top of your termination pay. This is what we refer to as bad faith damages.

Many factors are used to calculate termination pay, which is more commonly referred to as severance pay. These factors include age, position, and length of employment.

Segment starts at 4:58

Employee misclassified as contractor

The company I worked for as a contractor ended our relationship abruptly after I submitted a harassment complaint involving another contractor. They decided to let us both go to avoid any headaches. I worked there full-time for 3 years.

Employees are often incorrectly identified as independent contractors. Employment lawyers examine specific components of an individual’s job to determine if they are an employee or a contractor. Based on the fact that that you worked full-time with the company for 3 years, it is extremely likely that you are an employee. You would have the same rights as an employee has, including the right to severance pay upon termination.

It also appears that you were let go because you filed a harassment complaint against another contractor (who may also be an employee). An employer who terminates an employee over a harassment complaint is potentially liable for human rights damages.

Segment starts at 7:59


1️⃣ You cannot be let go because you are sick and cannot work
• Your employer would be in violation of the Human Rights Code if they let you go because of your medical condition. An employer has the duty to accommodate their employees.

Segment starts at 12:14

2️⃣ You cannot be let go if you have a drug or alcohol problem
• A drug or alcohol dependency is considered a disability. Your employer cannot punish you because you a struggling with a drug or alcohol addiction.

Segment starts at 13:06

3️⃣ You cannot be let go for any reason related to pregnancy or parental leave
• It is illegal for an employer to fire an employee because they are taking a maternity or parental leave, or if they are pregnant. Learn more about your employment rights while on a maternity leave.

Segment starts at 14:40

4️⃣ You cannot be let go if you complain about workplace harassment
• Once you inform your employer about workplace harassment, they have an obligation to take steps to protect you.

Segment starts at 15:58

5️⃣ You cannot be let go if the company is trying to avoid paying money it owes you
• An employer cannot fire an employee to dodge payments on items like a bonus or overtime payment. Their bad faith conduct would likely result in financial compensation to the employee.

Segment starts at 17:33

CALL: Significant changes to working hours

My friend’s employer is merging his job with another position. He’ll have more duties along with pay raise, but now he will work some evenings and weekends, which he wasn’t doing in the past. He’s been a manager there for 10 years. Is he entitled to EI and severance pay if he quits?

It appears that your employer is making a significant change to your hours of work. On top of allegedly working standard weekday hours (Monday to Friday, 9 am to 5 pm), you will now be working additional hours that may not have been part of the original terms of your employment. When a large change is made to the terms of employment by an employer, the employee can claim constructive dismissal. With assistance from an employment lawyer, they can resign with severance pay.

Segment starts at 19:27

CALL: Employee let go without proper severance

I was terminated a few days ago after 6 years as a technical writer. The VP told me that while I was dedicated and competent, my attitude was “not promotable.” I’m 50 years old and was given 4 months’ pay. I didn’t go to the Labour Board for severance.

While your employer’s comment about your lack of promotability may be difficult to hear, the reality is that the employer has the right to let you go in this situation. What the employer must do in this case is provide the proper amount of common law severance pay. As the Severance Pay Calculator will tell you, you may actually be entitled to 8 months’ pay, which is more than double your former employer’s offer of 4 months.

It is important that you do not contact the Ministry of Labour to seek help in negotiating your severance pay. While the Ministry of Labour or Employment Standards Branch can assist you with various workplace complaints, they cannot help you pursue your full severance pay entitlements. Those organizations can fulfill your MINIMUM severance amounts, but will not enforce your entire severance package.

Segment starts at 24:34

Enforcing employee rights without a contract

I was never given an employment contract to sign when I started my current job. Is it harder to enforce my rights without one? Should I ask my employer to create one for me?

It is far easier for an employee to enforce their employment rights without the existence of an employment contract. Employers use employment contracts to limit your rights. They do so using specific language and clauses. Those clauses include termination clauses, non-competition agreements and non-solicitation clauses. An employment agreement may also eliminate your ability to refuse changes to your job. Always have one of our employment contract lawyers review yours before you sign.

Segment starts at 27:17

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

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