Termination for Cause True or False | Employment Law Show TV – S6 E23

Episode Summary

TERMINATION FOR CAUSE TRUE OR FALSE, quitting due to harassment, fired without cause, and more on Season 6 Episode 23 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

Short-service severance and probation periods

I was a supervisor at a manufacturing facility for almost 3 months. I was let go and informed by my employer and was offered 2 weeks’ pay in severance. I assumed this was a good payout as I was still on probation. Was this correct?

• Calculating severance for short-service employees: Employees often assume that the first few months of employment are automatically considered a probationary period. This is incorrect. Employees are only on probation at the start of employment if they have agreed to be in an employment agreement. Employees who do not explicitly consent to a probation period are still owed severance upon termination despite the fact that their employment was short. In some circumstances, short-service employees could be owed disproportionality more severance, as it is considered difficult to find new employment.
  • LEARN MORE ABOUT SEVERANCE PAY
    What are your severance entitlements in Ontario?
    What is the severance owed to employees in Alberta?
    Are you owed more severance in BC?

Employee harassed by an office manager

I’m considering leaving my job as office manager due to ongoing harassment. I feel like I can no longer continue working in that environment. What are my rights in this situation?

• A safe workplace for staff: All employees are entitled to work in a harassment-free work environment. Employers are obligated to provide a safe workplace and must investigate and resolve claims of harassment. Employees should first bring forth complaints about harassment in writing to their employers. Employers who fail to resolve complaints can lead to a constructive dismissal of employees. Employees who have been constructively dismissed would be owed severance as it is no longer a resignation.

Severance entitlements after being fired without cause

I was employed at my company for almost 6 months before I was fired with no cause or reason. I didn’t receive a Record of Employment and was offered just a week’s worth of pay. I know I was only employed for a short period but am I entitled to anything else?

• Without cause termination and severance: Short-service employees are still entitled to severance pay upon termination and in some situations could be owed disproportionally more severance than a long-service employee. Before agreeing to a termination offer, employees should contact an employment lawyer to determine their rights and what they are owed.
  • LEARN MORE
    Terminated without a reason?

Termination for Cause: True or False

• Termination for cause severity: Termination for cause is considered the “capital punishment” of employment law as it is reserved for employees who have exhibited serious misconduct. Employers who can prove an employee has been appropriately fired for cause are not owed any severance pay.
• Employers can fire an employee cause for a simple mistake: It is typically very difficult to prove termination for cause and employees cannot be let go due to a sole error or mistake. Employers have to be able to prove misconduct as well as escalated disciplinary action. Employees can be let go for any reason but cannot be terminated for cause.
• A performance improvement plan to eventually terminate an employee: Employers are aware that they have to be able to prove an employee must be terminated for cause. A performance improvement plan is often used as a building block by employers to show that many chances were given to an employee. Employees who are given criticisms or plans that they do not agree with should voice their disapproval in writing. A failure to do so is considered acceptance by an employee and will justify an employer’s eventual actions.
• Easy for employers to prove termination for cause: It is very difficult for employers to be able to terminate an employee for cause. Employers have to be able to prove that there is no other remedy available for dealing with an employee’s behaviour other than a for-cause termination.
• Terminated “for cause” but still owed severance pay. Employers that are able to accurately prove that there was no possible solution other than termination could still owe employees some severance pay, even if it is not the full amount. Employees who have been terminated for cause should speak to an employment lawyer in order to determine their rights.

Terminated notice during maternity leave

My wife received a termination notice while she is still on maternity leave. Her employer has stated that they are restructuring. Can her employer do this? How much notice are they supposed to give?

• Rights on parental leave: Employers should be very wary of terminating employees who are on parental or maternity leave. It is considered a human rights violation and a breach of the ESA to terminate or penalize an employee due to pregnancy or for childcare reasons. Employees returning from parental or maternity leave must be brought back to the same position, pay, hours, etc. Employers are permitted to terminate employees who are on parental leave if there are no possible alternatives, such as a closing down of a department. Employers are able to find a comparable position for employees returning from leave if there are no other options available.
  • WATCH TO LEARN MORE
    Employment Law Show Season 6 – Maternity and parental leave primer

Employment contract includes longer than normal probation

I was given an employment contract that proposes a much longer probation period than the standard length of time. Can my employer do that?

• Extended probation period: Employers are not permitted to implement a probation period longer than 90 days. An extension of probation means nothing even if an employee has agreed to the terms in an employment contract. Employees should always consider seeking out legal advice from an employment lawyer before signing an employment contract.

Offered a new entry-level job after the position is considered obsolete

I’ve worked as an aviation manager at the same company for decades. My position was recently eliminated, but I was told I could apply for another job within the company. The prospect of training is overwhelming. What should I do?

• Forced into a new position at the company: Employers are not permitted to impose significant changes to the terms of employment without an employee’s consent. A major change to an employee’s job, such as a demotion, could lead to constructive dismissal. Employees should remember that they are not obligated to accept new changes. Employees who initially accept changes to their jobs permit employers to impose future changes. It is important to remember that unionized employees have to speak to their union representatives and cannot seek external legal advice.

NEXT EPISODE: Employment Law Show S6 E24 – What you need to know about changes to your job

PREVIOUS EPISODE: Employment Law Show S6 E22 – Facts about the termination process