What to know about “For Cause” Terminations | Employment Law Show TV – S7 E14

Episode Summary

WHAT TO KNOW ABOUT FOR CAUSE TERMINATIONS, forced to retire,  reduced shifts, and more on Season 7 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

Severance pay for short-service employee

I was employed in a senior role for a few months but was let go and given 2 weeks of severance pay. Is this an adequate amount considering I was only employed for a short period?

• Short-service employee rights: Employers mistakenly believe that terminating a short-service employee does not warrant a larger severance package. In many cases, short-service employees are owed comparatively more severance pay than longer-serving employees. This is due to the difficulty in finding future employment for short-service staff.
• Probation periods: A probation period at the start of new employment must be consented to and is not automatic. Employers often are not aware of this and typically terminate employees without offering severance pay.

Asked to sign a new employment contract

I worked as a truck driver for 11 years and was considered a contractor despite using company equipment. My employer recently issued a new contract for me to sign that makes me an employee but does not take into consideration my previous years of service.

• New employment contracts: Employees should be wary of signing a new employment agreement without contacting an employment lawyer. Employment contracts can allow employers to limit an employee’s future severance entitlements among other major changes.
• Classified as an independent contractor: Employers do not have the ability to decide whether or not an employee is an independent contractor. Employment law ultimately decides the classification of an employee. Many employees mistakenly classified as independent contractors miss out on important rights and entitlements.

Employee forced to retire

I’ve been on the receiving end of many comments from co-workers and a manager about my impending retirement. I have no plans to retire in the immediate future. Can I be forced out of my job?

• Forced resignations and severance: Employees cannot be pressured to resign or retire. Retirement must be voluntary as there is no longer a mandatory age for retirement in most provinces in Canada. Employees that feel they have been pushed to resign due to their age could have a human rights complaint for discrimination.

 What you need to know about “For Cause” Terminations

• Terminations “for cause”: Employees that have been terminated for cause are not entitled to any severance pay. Termination for cause is often called the “capital punishment” of employment law due to its severity.
  
• Difficulty in terminating for cause: It is extremely difficult to accurately terminate an employee for cause. Terminations for cause must only be implemented if an employee has exhibited serious misconduct, such as fraud or assault. Employers often mistakenly terminate an employee for cause due to simple errors and mistakes. Employers must build a case before terminating an employee for cause.
• Bad performance reviews: Employers often give employees bad performance reviews in order to start building a case against an employee. A performance improvement plan can be used to justify a termination. Employees that do not agree with negative reviews should voice their disapproval in writing.
• Owed severance pay: Many employers wrongfully dismiss employees for cause as there is no foundation for the termination. As the “for cause” termination itself was not justified, employees would still be owed severance pay.
• Employment law advice: Due to the frequency of wrongful dismissals and terminations for cause, employees would benefit from seeking the advice of an employment lawyer. While it is important to pursue potential severance entitlements, an accurate record of employment is also vital in securing employment insurance.

Refusal to accommodate an injury at work

My husband injured his shoulder and had to take a month off work to recover and rehabilitate. His doctor eventually cleared him to return to work but with some accommodations, however, his employer refused to accommodate his needs.

• Duty to accommodate: Employees with a medical condition must be accommodated by their employer up until the point of undue hardship. Employees should provide their employer with a doctor’s note detailing their restrictions and necessary accommodations.  A refusal to accommodate can be considered a human rights violation.

No severance after the sale of a business

My son worked in a restaurant for 6 years and recently it was sold. The old owner assured everyone that the new owners would be in touch but nothing happened. He didn’t receive any severance.

• Severance pay after a company is sold: Employees that have been let go in the event of a sale of a business are owed severance pay by the previous owner. Employees that are hired by a new owner should ensure their previous years of service are acknowledged. Severance is based on a number of factors including the age of an employee, years of service, and position.
  • Learn More
    Severance pay in Alberta
    Severance packages in Ontario
    Severance entitlements in B.C

 A major reduction in shifts

We’ve hired new staff and my hours seem to have reduced dramatically. While I previously worked 30 hours a week consistently, I now have to request more shifts. Do I have to accept this?

• A major change in terms of employment: Employers do not have the right to impose major changes to the terms of employment, regardless of whether or not an employee is a part-time employee. A major change, such as a dramatic reduction in shifts, can be considered constructive dismissal. Employees do not have to accept a proposed change and should voice their refusal.

NEXT EPISODE: Employment Law Show S7 E15 – Fast facts about maternity and parental leave

PREVIOUS EPISODE: Employment Law Show S7 E13 – Performance review primer for employees