Temporary Layoffs: True or False | Employment Law Show TV – S9 E07

Episode Summary

TEMPORARY LAYOFFS TRUE OR FALSE, termination clauses, a toxic work environment and more on Season 9 Episode 07 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 TV and radio in Canada.

Episode Notes

Deemed a contract employee

I started working for my employer almost 10 years ago. For the first 6 years, I was considered an independent contractor, but then was eventually classified as an employee. I’ve now been let go and told my severance will be based on 4 years of work. Is this legitimate?

• Independent contractors and employees: Employers cannot decide whether or not an individual is an employee or an independent contractor; employment law dictates that individual employment which meets certain criteria results in a particular classification. Misclassified employees lose out on vital employment rights, such as adequate severance pay.
  

Contract with a termination clause

I’ve been at this company for 4 years in a senior executive position. I signed a contract that contained a termination clause limiting my severance. It appears I could lose my job shortly. Will the contract I signed prevent potential severance negotiations?

• Contracts and terminology: It is a common practice for employees to sign contracts containing terminology that seeks to limit severance entitlements. Termination clauses are often not enforceable, however, as they are not drafted adequately. Employees, despite signing a contract with a termination clause would likely still be owed severance.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Toxic work environment and termination

I was employed for 6 years before I was recruited to this new job. The toxic work environment was immediately evident. After voicing my complaints, I was let go and offered 2 weeks’ severance, after 9 months of employment.

• Workplace harassment complaints: Employees cannot be terminated from employment after filing a harassment complaint. Penalizing or letting an employee go after complaints have been made is considered a reprisal and is illegal.
• Recruitment and severance: Employees who have been recruited from a job and let go shortly after in a new position would likely be owed enhanced severance pay. The new employer would have to take into consideration the employee’s previous years of service.

Employees with family care obligations

My mother has a vision problem and recently had a fall. I want to ask for family care accommodation from my employer so I can look after her. I worked remotely for the past couple of years but recently got called back into the workplace.

• Duty to accommodate: Employers must accommodate an employee who has family care obligations, particularly if they are a primary caregiver. A refusal to accommodate could be considered a human rights violation. Employees should express their needs clearly to their employers as well as prove there is no other viable options available to them.

Temporary Layoffs: True or False

• Layoffs without consent: Employers cannot place employees on a temporary layoff without their consent. In most cases, this is illegal and can be treated as a constructive dismissal.
  
• Layoffs are always permissible: In some industries are common practice, particularly seasonal positions. A temporary layoff should still not be viewed as automatic, no matter the industry.
• Setting a future precedent: Accepting a temporary layoff permits an employer to implement another layoff in the future.
• Employee years of service: Years of service continue to accumulate while an employee is placed on a temporary layoff. This is important to note if an employee is eventually terminated without cause.
• Treated as a termination: Employees can treat a temporary layoff as a termination of employment and pursue their full severance entitlements.

Employee rights if a company is sold

I have worked as a manager at a company for almost 20 years. They were going to be bought recently but the deal fell through. I sense ownership may just shut it down. I believe I am entitled to roughly 8 weeks’ pay but I am wondering if I should be receiving more. I’m 62.

• Selling a business: A company shutdown does not prevent an employee from receiving severance pay. Severance in the event of a closure will still be based on an employee’s age, position and years of service.

Fired “for cause” due to an error at work

I made a mistake at work and instead of firing me, my director issued a warning. I have since found out that the company is restructuring and removing several roles in my department. Can they use my past mistake to fire me for cause now?

• Terminations “for cause”: It is very difficult to terminate an employee “for cause” due to an error or mistake. Terminations for cause can only occur if an employee has exhibited serious misconduct, such as fraud or theft. Employers must be able to prove there was no other alternative to termination, and that progressive disciplinary action was taken.
  

Employment Rights

• Severance pay: Generally severance pay is mandatory if an employee has lost their job, unless the employer can justifiably terminate for cause.
• Advanced notice of a layoff: Employers must either provide advance notice of termination, provide severance or a combination of both.
• Accommodating an employee’s needs: Employers must accommodate an employee’s medical condition despite incurring an additional cost. A refusal to accommodate can only occur if the accommodation would cause undue hardship.
  
• Fired while on vacation: An employer can terminate an employee while they are on vacation as long as adequate severance pay is offered.
• Employee wages withheld: Employers are not required to provide employees with a written contract. A formal contract typically protects the interest of an employer, not employees.
  

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