Recalled From a Temporary Layoff | Employment Law Show TV – S4 E25

Episode Summary

RECALLED FROM A TEMPORARY LAYOFF, moved from salary to commission, fired while on sick leave, overtime pay, and more on Season 4 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

Employee told not to return to work during COVID-19

I have asthma and a heart condition and was told by my doctor not to return to work during COVID-19. My employer said if I don’t return, he would consider me to have resigned.

In this situation, your employer is incorrect, and they can’t force you to return to work. If you have a doctor’s note, and your doctor says you should not be working because of a medical condition, you are allowed to be off work. Your employer can’t fire you for it, or consider you to have resigned.

Segment starts at 2:00

CALL: Moved from Salary to Commission

I was earning salary plus commission as a 53-year-old manager. The company is downsizing and has moved me to 100% commission. I’ve been working for them for the past 2 years. Can they do that?

If an employer makes a change that would significantly reduce an employee’s pay, a constructive dismissal may be triggered. An employer does not have a right to make significant changes to an employee’s terms of employment.

Segment starts at 5:07

Independent Contractor Laid Off

I have been working as an independent contractor for the same company for 5 years. I was just “laid off” due to COVID-19, but not given the 60 days notice that was agreed upon in the original contract I signed. I don’t believe my employer has any intention of giving me more work. What are my rights?

The first thing to consider is whether you are an employee or an independent contractor. If you are an employee, there are many protections that could help you. Since you are likely an employee, you would be owed severance if you are out of a job. Employees are often misclassified as independent contractors.

Segment starts at 8:35

RECALLED FROM A TEMPORARY LAYOFF: 5 Things to Remember

1️⃣  You have a right to return to a safe workplace

You have a right to refuse unsafe work during the coronavirus pandemic. It is a fundamental duty of an employer to provide a safe work environment. An employer has the responsibility to follow occupational health and safety legislation to maintain a safe and healthy work environment.

Segment starts at 13:32

2️⃣  You have a right to earn the same pay, hours of work and job you had before the layoff

A change in an employee’s pay, hours worked, position or job description and duties would be considered a constructive dismissal (change to the terms of employment).

Segment starts at 15:07

3️⃣  You do not have to sign a new employment contract

If you are already employed, and if you come back from a temporary layoff, you should not have to sign a new employment agreement. The only reason the company would ask you to sign a new contract is if it provides for more advantageous terms for the employer. Learn what you need to know about employment contracts.

Segment starts at 16:41

4️⃣  Your seniority does not start back at zero

A temporary layoff does not impact the length of service, or amount of time, you have spent working for your employer. Therefore, if you are laid off permanently after being brought back to work, your severance would be based on your entire time spent at the company, uninterrupted by the layoff.

Segment starts at 17:54

5️⃣  If you aren’t recalled to work, you are owed severance pay

If you are not recalled from a temporary layoff, your employment is considered to have been terminated permanently. You would be owed a full severance package.

Segment starts at 19:09

CALL: Fired Over Sick Leave Doctor’s Note

I took a sick leave after I began suffering from symptoms similar to COVID-19. I provided my employer with a medical note from my doctor, but they weren’t satisfied with it, and they fired me. What are my options?

An employer can’t fire an employee if they have a valid note from their doctor supporting their sick leave. You cannot be fired because you are on a medical leave that your doctor has approved. It is a wrongful dismissal, and could easily be a human rights violation.

Segment starts at 20:48

CALL: Severance Pay Amount During COVID-19

I’m currently on a temporary layoff. Coworkers with around 30 years of service has just been laid off and given about 1 year of severance pay. I, too, have 30 years with the company. Will the courts cut the amount of severance pay people can get during COVID-19?

An employee has a right to severance pay during COVID-19. The coronavirus crisis may actually result in larger severance packages for employees due to the difficulty of finding new employment.

Segment starts at 24:39

Bonus, Overtime Pay Stopped

For the past three years, I have received a bonus, paid out at the start of each summer. My manager just told me that they are ending that bonus due to COVID-19, even though I met all of the goals this past year. They also said they can no longer honour my overtime pay. These two changes are going to mean a big hit to my income.

The reduction in overtime and bonus pay is a significant decrease in your total compensation. An employer does not have a right to change your compensation by more than 10%. That would constitute a constructive dismissal. You can choose to accept the changes, or you can treat it as a termination and leave with your severance.

Segment starts at 26:37

Next Episode: Employment Law Show S4 E26 – Termination of Employment (Setting the record straight)

Previous Episode: Employment Law Show S4 E24 – Wrongful Dismissals During COVID-19