The Employment Law Show

Mistakes companies make that you need to know about | Employment Law Show TV – S5 E22

Episode Summary

MISTAKES COMPANIES MAKE THAT YOU NEED TO KNOW ABOUT, reduced commission, refusal to accommodate and more on Season 5 Episode 22 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

Put on probation after years of employment

I’ve been working for my employer for years but they said they weren’t happy and said I’d be put on probation for the next few months. Is this allowed?

Employees cannot be put on probation after years of employment, it is technically meaningless. Probation cannot be extended after an initially agreed three months at the beginning of employment. Probation must be agreed upon at the start of an employee’s employment, it is not automatic.

Segment starts at 2:10

CALL: Changes to compensation after a temporary layoff

I am being recalled from a temporary layoff. My employer is going to scale back my commission, which has made up a good portion of my salary for about 20 years. Is there anything I can do about that?

Employers are not permitted to drastically change the terms of employment without an employee’s consent. Significant changes to an employee’s compensation are considered grounds for constructive dismissal.

Segment starts at 6:03

Federal vs. Provincial employee severance

Is severance pay different between federally and provincially regulated employees?

Most individuals are governed provincially while some employees are governed federally. Ultimately, the full severance entitlements for federal and provincial employees remain the same. Federally regulated employees if let go can potentially be re-instated at their position.

Federally regulated employees and severance
Federally regulated employers in Canada

Segment starts at 9:25

Mistakes companies make that you need to know about

1️⃣ Putting an employee on a Temporary Layoff, even during a pandemic or economic downturn, thinking that it is okay to do so.

Many employers assume, due to circumstances, they can temporarily lay off employees. Employers are not permitted to lay off employees without their consent. An employee can choose to treat the layoff as termination and pursue their severance entitlements.

Segment begins at 13:05

2️⃣ Firing an employee “for cause” when they don’t actually have cause.

It is typically difficult for employers to prove termination for cause. In order to prove termination for cause, an employee has to have exhibited serious misconduct and a case must be build-up to prove there are no other options.

Segment begins at 15:15

3️⃣ Making changes to an employee’s job or pay without their permission.

If the terms of employment have been established, an employer does not have the right to significantly change the terms without an employee’s consent. A significant change can be treated as a reason for constructive dismissal.

Segment begins at 16:14

4️⃣ Only providing minimum severance pay under provincial rules (or no severance at all!)

Employers often mistake an employee’s minimum severance entitlements as their full entitlements. The Ministry of Labour often advises employers on the minimum entitlements they must offer their employees.

Segment begins at 18:01

5️⃣ Failing to properly respond to workplace harassment

Employers have an obligation to investigate harassment allegations and have policies in place in order to rectify the situation.

Learn More
Harassment allegations in the Canadian Armed Forces
How should employees address workplace harassment?

Segment begins at 19:51

6️⃣ Refusing to make accommodations for an employee with a medical condition

Employers have a duty to accommodate employees who have a medical condition and should listen to an employee’s doctor. If an employer refuses to accommodate an employee, they are potentially violating their employee’s human rights.

Segment begins at 20:41

CALL: Forced to sign a new contract with a termination clause

My boss wants us to sign a new employment contract that constricts our right to severance when we’re fired. He is threatening to give us two years’ notice of termination, at which point he will rehire us on the new contract. Can he do that?

Employees should not sign an employment contract without first contacting an employment lawyer. Employment contracts often limit an employee’s future severance entitlements.

Segment starts at 21:36

CALL: Unattainable employment goals set by an employer

I was recently promoted after 8 years with the company. Along with the promotion, I was given extremely unrealistic performance goals that I haven’t been able to meet, and have drawn the ire of management. What should I do?

Employees should properly communicate with their employer their concerns in writing regarding an employer’s expectations. If there is written evidence of an employee’s concerns, it will be difficult for an employer to terminate an employee for cause.

Segment starts at 24:35

Refusal to accommodate employee’s medical condition

I went on LTD after suffering multiple injuries in a car accident. The insurance company cut off my benefits a year into my claim. When I told my boss I needed to return to work at a reduced capacity, she refused and said we had to “part ways.” I’m 47 and have been with the company as a middle manager for 6 years. What are my rights?

Employers have an obligation to try and accommodate an employee’s medical condition or disability. Employees who are cut off from their disability benefits before they are ready to return to work should contact a disability lawyer as benefits are often prematurely cut off.

Segment starts at 26:15

NEXT EPISODE: Employment Law Show S5 E23 – Non-Competition and Non-Solicitation Clause Primer

PREVIOUS EPISODE: Employment Law Show S5 E21 – You are still owed Severance Pay if…

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