Primer for taking Maternity or Parental leave | Employment Law Show TV – S9 E04

Episode Summary

PRIMER FOR TAKING MATERNITY OR PARENTAL LEAVE, termination clauses, leave of absence and more on Season 9 Episode 04 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 both TV and radio in Canada.

Episode Notes

Let go due to primary caregiver role

I’m the primary caregiver for my elderly mother. Recently, due to my mother’s illness, I had to provide care 24/7. I informed my employer of this I was permitted to take a leave of absence for a few weeks. My employer then stated they could no longer accommodate this and had to let me go. What are my rights here?

• Accommodations in the workplace: Certain leaves are job-protected leaves. Employees have a right to take a job-protected leave of absence to care for a family member if there are no other options available. Employers who terminate employees despite this protected status have committed a reprisal.
  

Re-located by employer then let go

I’ve worked at a firm for 2.5 years and am 64. The company moved me to another location, which caused me a lot of additional stress. My doctor advised that I work a 4-day week as a result. Now, months later, I’ve been let go and offered 6 weeks of severance.

• Change in job location: Employers cannot impose major changes to an employee’s position, such as a re-location, without the consent of the employee. Changes that cause a significant negative impact on an employee’s job can lead to constructive dismissal. Employees would then be able to pursue their severance entitlements.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C
• Accommodations in the workplace: Employers must accommodate an employee’s medical condition. They are not permitted to ask an employee questions regarding a diagnosis, however, merely accommodations and a prognosis.

The employment contract contains a termination clause

I was given a new contract to sign but it contained a termination clause limiting my potential severance entitlements. Due to this, I refused to sign it. Now I’m learning this could affect potential RSP contributions.

• Clauses included in a contract: Employees do not have to sign a new employment contract given by their employers. A refusal to sign can lead to a loss of potential extra benefits. New contracts typically contain provisions that could limit an employee’s rights, such as severance pay and the right to refuse a major change to their job.

Leave of absence due to harassment

A friend of mine, who is a CEO, routinely faces harassment from the founder of his company. She micromanages and belittles him around his colleagues. He’s considering taking a leave of absence due to stress but, should he just resign?

• Employee rights in a toxic workplace: Employees have a right to work in a stress-free and safe work environment. Employees facing harassment at work should initially file a complaint with the appropriate department. If this is not possible, it is important to document all incidents of bullying to build a case. Contacting legal advice is vital to then pursue constructive dismissal.

Primer for taking Maternity or Parental leave

• Inform your employer “expecting”: Employees do not have to inform their employers if they are expecting. Employees cannot be penalized if they are pregnant or about to take a leave. It is beneficial for employees to give an appropriate amount of notice to their employers, however, before taking leave.
  
• Hire a replacement while on leave: Employers can hire a replacement during an employee’s parental leave. Despite this, employers cannot decide to keep the replacement hire instead of the returning employee.
• Let go during maternity or parental leave: Parental leave is a job-protected leave and employees cannot be terminated during this period. A termination can occur if it has nothing to do with the leave itself. Employees who are let go during a leave of absence could be owed enhanced severance pay.
• Make changes to your job upon a return from leave: Employees must return to the same position they had before taking leave. Employers cannot impose changes to a returning employee’s position.
• Position no longer exists: If the previous job no longer exists, an employer must find a comparable position. Employers who terminate employees specifically for taking leave could face additional legal consequences, such as human rights damages.

Accepting being placed on a layoff

I was put on a temporary layoff a few weeks ago. Do I have to accept this and wait for them to call me back? I’ve been with the company for almost 5 years, and this has never happened before. I’m 55 and earn a salary of $62K, in a supervisor position.

• Temporary layoffs: Employers cannot legally place employees on a temporary layoff unless they have received consent. A temporary layoff can be treated as a regular termination of employment, and employees can pursue their severance entitlements.

Probation period extended over 6 months

My boss originally placed me on a 6-month probation period when I was hired. Recently I was given a last-minute project that I wasn’t prepared for, as we’ve become increasingly understaffed. Now I’m being told my probation is being extended because of performance concerns Is this legal?

• Probation as a performance measure: Employers are legally able to place employees on probation within the first three months of a new job. Probation must be consented to and is not automatic. Probation cannot be used as a form of discipline in the workplace. It is meaningless to extend a probation period. Employees who are let go during this period would still be owed severance pay.
  

Employment Laws

• Sick leave without a doctor’s note: Employees taking a leave of absence due to illness need a doctor’s note. Employers can insist on a doctor’s note.
• Accept a temporary reduction in pay: Employees can accept a reduction in pay, but should not do so. Accepting a reduction in pay, even temporarily, allows an employer to implement another reduction in pay in the future.
  
• Severance after being fired “for cause”: Employees are often mistakenly terminated “for cause”. It is difficult to justifiably terminate an employee for cause, and many employees are likely still owed severance.
• Negotiate for a larger severance package: Employees should contact an employment lawyer to aid in negotiating a better severance package. Employers are unlikely to take an employee seriously on their own.

PREVIOUS EPISODE: Employment Law Show S9 E03 – Understanding Severance Packages