The Employment Law Show

Rights of employees when ill or injured | Employment Law Show TV – S6 E14

Episode Summary

RIGHTS FOR EMPLOYEES WHEN ILL OR INJURED, fired due to customer complaint, put on a layoff, and more on Season 6 Episode 14 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

Long-service employee labelled as a contractor

I’m an accountant and have been with my employer for over 16 years. I was let go as my office was closing down. Am I owed any severance? I was told I’m not as I am an independent contractor.

  • Employee labelled contractor: Employees are often misclassified as independent contractors when they are not and miss out on important benefits, such as vacation pay, overtime, severance pay, etc.  In order to distinguish whether or not an individual is an employee or contractor, they must consider the level of control they have over their schedules and compensation.

Fired for cause after 25 years

My friend was fired for cause after he declined a customer’s attempt to return a product, as per company policy. After working for the employer for 25 years in a senior management role, he was given. Is he owed more?

  • “For cause” termination due to error: Employees in this situation should speak to an employment lawyer as employers often fire employees for cause inaccurately. In order to prove an employee has been terminated for cause, employers have to establish there has been an escalation in discipline and no alternatives other than termination. Employees cannot be terminated for cause due to simple errors.

Put on a layoff after voicing complaints

I’ve been put on a layoff without a specific return date. I’m the only one at the company without work right now, and this happened just a few days after I confronted my manager about the many hours I work overtime without extra pay. When do they have to call me back?

  • Penalized for complaining about overtime: Employers do not have the right to put employees on a layoff unless they have previously agreed to a layoff at the start of their employment. Employees who have been put on a layoff can treat it as termination and pursue their severance entitlements. Employees should note that they can also not be penalized for pursuing their rights, such as overtime pay. Employers who have penalized employees could be liable for additional damages.

Rights for employees when ill or injured

  • You can’t be fired due to illness or injury: Employees who are sick and need to take time off work cannot be let go as a result of the injury or illness. Employees are still considered employed in this situation and on leave. Only a doctor can determine whether or not an employee is able to take time off work.
  • Let go because of your medical situation: Employees who are let go are still owed severance pay however there could be additional human rights damages as employers should not be terminating employees as a result of an illness or injury. Employees who are still ill, when terminated, could find difficulty in finding future employment and so could have additional compensation.
  • Take medical leave/ rely on disability benefits through the company: An employee’s doctor is the sole determinator of whether or not an employee is able to work. Employers are permitted to ask for a doctor’s note however it cannot be questioned by the employer once provided.
  • Your employer is allowed to know your prognosis: Employers are permitted to know whether or not an employee is able to work and for how long they are unable to work, as well as possible accommodations. Employers are not allowed to know the diagnosis and specific treatment and specialists an employee is seeing in order to be treated.
  • Need for accommodation in the workplace: It is important for employees to speak to their doctor and provide their employer with possible accommodations and restrictions, such as part-time hours or reduced duties. Employers are obligated to ensure accommodations are provided to employees up until the point of undue hardship. An employer who has refused to accommodate an employee is violating their human rights and could be liable for possible damages.

Employee owed accrued vacation pay after termination

Does my employer have to pay me accrued vacation time and commission if I am fired? I have accumulated around 10 weeks’ vacation and confirmed over $1 million in customer orders.

  • Accruing vacation pay: Any accrued vacation must be paid out to employees if they have been let go or if they resign. Employees who are owed bonuses or commissions are owed compensation if they are resigning and have fulfilled all of the responsibilities and tasks in order to receive that compensation. Employers who do not pay outstanding compensation to employees could be liable for further legal consequences.

Owner wants to drastically reduce compensation

The group that bought my employer wants to cut my income. I earn a salary plus commission, however, they want to eliminate my salary and cut benefits without increasing my commission. What can I do about it?

  • Reduced pay by the employer: Employees do not have to accept significant changes made to the terms of their employment. A major change to the terms of employment can lead to constructive dismissal. Employees in this situation can pursue their severance pay and should speak to an employment lawyer. Employees are within their rights to accept a change temporarily but must communicate their concerns with their employer in order to ensure the change is temporary.

Disagreeing with a performance review

What should somebody do if they disagree with a performance review, and are worried that their boss is slowly working to get them out the door?

  • Performance critique by an employer: Employers often use performance improvement plans in order to build a case against an employee for future termination for cause. In order to protect their own entitlements, employees should voice their disagreement with a review in writing, but follow the prescribed changes. Employees should be courteous and professional in their dissent. Silence from an employee is considered to be implied acceptance and consent.

NEXT EPISODE: Employment Law Show S6 E15 – Employment law red flags: Part 2

PREVIOUS EPISODE: Employment Law Show S6 E13 – Things employees should never do before talking to a lawyer

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