Performance review primer for employees | Employment Law Show TV – S7 E13

Episode Summary

PERFORMANCE REVIEW PRIMER, fired for cause, signing a new contract, and more on Season 7 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

Denied accommodation by the employer

I was in a car accident and couldn’t work the night shift. I informed my boss but I was told I had to come in and so resigned. Am I owed anything here?

• Duty to accommodate: Employers have an obligation to accommodate an employee’s medical needs. Employers cannot insist employees come to work if they have a medical issue or condition. Employees cannot be penalized if they are ill and unable to work. Employees that are pressured into coming into work should not resign from employment but inform their employer they are unable to work and provide a doctor’s note.

Long-service employee severance

My father has worked for the same company for over 17 years and is 74 years old. After being laid off he was brought back to a lower position. His employer is now offering 6 months’ working notice of termination.

• Severance entitlements for employees: Employees are often given inadequate severance packages by their employers. Employers are often unaware that severance pay is based on a number of factors including age, years of service and position. Employees that have been employed for many years can be owed up to twenty-four months’ pay.
  • Learn More
    Severance pay in Alberta
    Severance packages in BC
    Severance in Ontario
• Temporary layoffs: Employers do not have the legal ability to place employees on a temporary layoff. Employees can choose to treat their employment as terminated and pursue their severance entitlements.

Fired for cause due to lateness

I was late coming to work and my employer advised me that my pay will be deducted and I am in danger of losing my job “for cause”. What can I do?

• Termination for cause: Employers often incorrectly terminate employees for cause due to simple errors and mistakes. Employers have the right to expect employees to be on time for work however, it is difficult to fire an employee for cause as a result. In order to justify a termination for cause, employees would have had to exhibit serious misconduct and be given several warnings from their employer.

Performance review primer for employees

• Critique and review an employee’s performance: Employers can expect a certain level of performance from their employees and critique their employees. Employers should ensure employees are doing their job and policies are being followed. Performance reviews and criticism must be legitimate and conducted in good faith.
  
• An employee does not agree with a review: Employees that do not agree with a performance review should voice their disagreement in writing. Silence is viewed by employers as acceptance. A negative performance review can be used against an employee in the future.
• Change an employee’s pay, duties or job title: Employers cannot make major changes to the terms of an employee’s job due to performance, even if the criticism is accurate. A major change to the terms of employment, like a demotion, can be treated as a termination of employment. Employers should work with an employee to improve their productivity and performance.
• Justify firing someone “for cause”: It is very difficult to terminate an employee for cause. It is not enough for an employer to showcase an employee’s mistakes or bad performance in order to justify a termination for cause. Employers have a legal obligation to try and improve the employee’s performance.
  
  

Sign a new employment contract

My previous employer sold the company to a new owner. I was hired and have been employed for almost 9 months. They are now asking me to sign a new employment agreement in order to receive a company car.

• Employment agreements: Employees should be wary before signing a new employment contract and seek legal advice. An employment contract often contains terminology that limits the rights of an employee, such as a termination clause or implementing major changes.

A job offer was rescinded by the new employer

I was employed for 6 months when I was offered a foreman position in another location. Before I could start the new job, the offer was rescinded, and I was terminated. I was not offered any severance.

• Severance pay and starting a new job: Employers have the right to terminate an employee without cause for any reason as long as adequate severance pay is offered. Employers who rescind job offers for potential employees could also owe severance pay if the employee has incurred losses as a result.

Denied bonus after returning from maternity leave

Every year I received a very substantial bonus, until the year I took maternity leave. I was the only one of my colleagues who didn’t get my bonus. What should I do?

• Maternity leave: Employees cannot be penalized for pregnancy or taking maternity leave; it is considered a human rights violation. Employees must be given the same position upon a return from maternity or parental leave. Employees that are facing changes to their job as a result of maternity leave should speak to an employment lawyer.

Employee’s company relocates

My company is looking to relocate the office from its current location. The move will result in over an hour added to my commute. I asked if a work-from-home position was possible but was denied.

• Constructive dismissals: A major change to the terms of employment, such as a significant relocation, can result in constructive dismissal. Employees do not have to accept major changes posed to their job.

NEXT EPISODE: Employment Law Show S7 E14 – What to know about “for cause” terminations

PREVIOUS EPISODE: Employment Law Show S7 E12 – 5 Workplace red flags