Guide to constructive dismissal | Employment Law Show TV – S9 E06

Episode Summary

GUIDE TO CONSTRUCTIVE DISMISSAL, given working notice from an employer, severance for short-service employees and more on Season 9 Episode 06 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 about employment law in Alberta, Ontario, and British Columbia on the only employment law show on TV and radio in Canada.

Episode Notes

Negotiating for severance pay

I worked for my boss for almost 3 years and was offered 1 month of severance when let go. I initially tried to negotiate with my employer for more severance, and I signed off on a 2-month offer. Was this an appropriate amount of compensation?

• Seeking legal advice: Employees should be wary of negotiating with their former employers regarding severance without first seeking legal advice. Employers rarely offer adequate severance packages. Once a severance offer is agreed upon, it is not possible for employees to renege on their acceptance.
  

Severance for Canadian employees

A friend of mine who’s worked over 30 years in senior management for a company is being offered a severance package of one year’s pay. They’re an American company though he’s based in Canada.

• Severance pay for employees: Employees who work in Canada are entitled to the rights of Canadian employment laws. Despite ownership, Canadian employees would be owed severance pay based on the region they work in. Severance would still be based on an employee’s age, position and years of service.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Given an ultimatum by the employer

After over 10 years with my current employer, I received an email stating that I was no longer needed there. My boss gave me two options: working notice or finding another position immediately. As a result, my working environment has become uncomfortable and hostile.

• Working notice: Employers are legally able to place employees on working notice. Employees do not have to find another position within a company if given notice, and can choose to find employment elsewhere. Often employees are owed additional severance pay after a working notice period ends.

Resign or take disability leave

I recently had to go on short-term disability leave. I’m not sure I can continue working in the same capacity or what other disability benefit options are available. Is there any way I can get a severance package instead of having to resign?

• Resigning due to disability: Employees should consider whether they are entitled or able to apply for long-term disability. Employees who do not have the option for long-term disability can still take a medical leave of absence with the support of their doctor. Employees who are unable to return to work permanently can seek minimum severance entitlements due to “frustration of contract”.

Guide to Constructive Dismissal

• Defining a “constructive dismissal”: A constructive dismissal occurs if an employee chooses to consider their employment to be terminated. This is due to misconduct or breach of conduct exhibited by the employer.
  
• Signs of constructive dismissal: A common form of constructive dismissal is an imposed major change to the terms of employment. This could be a drastic reduction in pay or hours or a demotion.
• Considering resigning from the position: To trigger a constructive dismissal an employee must resign however, they should only do so after consulting an employment lawyer.
• Severance pay calculations: Severance pay owed in a constructive dismissal is the same amount of compensation owed in a regular dismissal of employment.
• Consulting an employment lawyer: Employees should seek legal advice before making significant decisions. A failure to take adequate steps can cause further difficulties.

Short-service employee let go

I worked as an executive assistant for a family-owned manufacturing company for 8 months before being let go without warning. I was told it was due to restructuring. I wasn’t asked to sign anything and was only given 1 week’s severance. I’m almost 45. What are my options?

• Rights for short-service employees: Many short-service employees are owed comparatively more severance than long-service employees due to their ability to find future employment. Employers can terminate employees for any reason as long as adequate severance pay is offered.

Taking vacation despite a rejected request

My employer has repeatedly cancelled my vacation requests at the last minute in the past year and put me on new projects. Can they fire me if I take my vacation despite being put on a new project? Can an employer stop you from taking any vacation at all?

• Performance management: Employees should not decide to take a vacation without confirming with their employer. Employers must permit employees to use their entitled vacation time throughout the year and cannot prevent employees from taking any personal time. Employers are permitted to determine when an employee can take time off.
  

Can an employer…?

• Let go due to disability: Employers cannot terminate employees due to a disability or medical condition. A termination due to a disability is considered a human rights violation.
• Annual bonus not paid: A bonus that is considered a reliable component of an employee’s compensation cannot be taken away by an employer. This could lead to constructive dismissal.
  
• Let go after filing a harassment complaint: Letting an employee after a harassment complaint has been filed is considered a reprisal and it is illegal.
  
• Pressured to resign or retire: Resigning or retiring from employment must be completely voluntary. Employees who have been pressured to resign can consider their employment to have been terminated.
• Employee wages withheld: Employers cannot withhold employee wages unless an employee has given written consent.
  

PREVIOUS EPISODE: Employment Law Show S9 E05 – Employee Misclassification: What is it?