Key questions about employment rights for older workers | Employment Law Show TV – S6 E25

Episode Summary

KEY QUESTIONS FOR OLDER WORKERS, fired while on disability leave, layoffs and more on Season 6 Episode 25 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

A refusal to a shift change leads to termination

I’ve worked a regular 9-5 shift but I was informed recently by my employer that I will need to work weekends due to restructuring. I refused the change in schedule and was told this was a resignation. Is this right?

• Major change made to a job: Employers cannot decide to change the terms of employment without an employee’s consent. Employers do not have the right to change an employee’s compensation, schedule, etc, and doing so can lead to constructive dismissal. Employees in this situation should remember that they have not resigned and in fact, are owed their severance.

Let go from employment due to business slowing down

My friend has worked for 18 years for a company. In the last year or so things have slowed down significantly. His employer is now letting him go and offering only 8 weeks of severance pay.

• Severance pay and employer financial difficulties: While employers are permitted to restructure and let employees go for any reason as long as it is not discriminatory, adequate severance must be given. Severance entitlements are based on several factors including the age of an employee, the length of service as well as the position. Long-service employees can be owed up to 24 months of severance pay.

LEARN MORE ABOUT SEVERANCE
• Severance pay in Ontario
• Maximum severance in Alberta
• B.C Severance pay

Told to return to the office after working remotely

At the start of the pandemic, our office shifted to a “work from home” model. Our boss sent an email a few months later informing staff that we would be working remotely on a permanent basis, even after COVID-19 ends. Last week, she decided to reverse her decision, saying we must return next week. Can she do that?

• Remote work and employee rights: Employers cannot decide to change the terms of employment or an aspect of employment that employees are relying on. It is important to remember, however, that employees who have been working remotely purely due to the pandemic and were informed of such, must return to the office if their employer requests them to do so.

• Learn more about employee rights when employers end remote work and recall staff in provinces like Ontario, Alberta and British Columbia.

LEARN MORE
• Changes to your employment in Ontario
• B.C. employees and changes to your job
• Can your employer change your job in Alberta

Key questions about employment rights for older workers

• Can an employer fire an employee due to their age: Employers do not have the right to terminate employees due to their age, it is considered discriminatory. In the province of Ontario, there is no longer mandatory retirement. Employers who do decide to let an employee go due to their age are committing a possible human rights violation.
• Disciplined or terminated due to performance issues: Older employees who fear their performance is suffering should let their employer know and try to have support from their doctor to provide an employer with more context. Employers do not have to accept a bad performance but they should be working with their employees to find a solution.
• Can older workers ask for additional training: Employees who need additional help and support or potential accommodation should receive aid. Employers are obligated to accommodate employees however they must be properly notified by their employees. Employers must be active participants in accommodation and a refusal to do so can lead to human rights concerns and potentially even constructive dismissal.
• Can a company pressure an older employee to resign: Employers cannot pressure employees to resign or retire, it is illegal. Employers are within their rights to ask their employees about their future plans. Employees who feel they are being pressured to resign should contact an employment lawyer.
• How does severance pay work for an older individual: Severance entitlements for employees are based on a number of factors including the length of service of an employee and their age. Long-service employees as well as older employees are typically owed more severance due to their ability to find future employment.

On a layoff for almost a year due to COVID-19

I worked at a hotel but was laid off last summer due to COVID-19. I’ve been on EI for months now, and even though the hotel is open they have not called me back. Am I still considered to be employed?

• Laid off due to the pandemic: In some cases, employers were forced to close their businesses due to public health restrictions. Once a business is cleared to open, employees who have not been called back by their employer can treat their employment as terminated. Employees can choose to accept the continued layoff or decide to pursue their severance entitlements. Employees do not have to accept a continued temporary layoff.

LEARN MORE ABOUT LAYOFFS
Laid off in B.C?
Temporarily laid off in Ontario
Temporary layoffs in Alberta

Fired while on disability leave and offered minimum severance

My daughter is off on long-term disability. Her employer told her that if her latest medical report says she can’t return to work yet, she will be fired and given 15 weeks’ pay after 15 years with the company.

• Terminated due to illness or medical condition: Employers cannot terminate an employee due to an illness or disability or if they are on disability leave, it is considered a human rights violation. Employers are only permitted to terminate an employee who has been off for a very long time and there is no likelihood of the employee returning to work. Employees should also assume the initial offer of severance by their employer is inadequate and contact an employment lawyer. Employees should rely solely on their doctor and treating medical team for clearance to return to work as well as any necessary accommodations.

NEXT EPISODE: Employment Law Show S6 E26 – What employees need to know about workplace stress

PREVIOUS EPISODE: Employment Law Show S6 E24 – What you need to know about changes to your job