What to know about wrongful dismissals | Employment Law Show TV – S8 E18

Episode Summary

WHAT TO KNOW ABOUT WRONGFUL DISMISSALS, a schedule change after maternity leave, employee rights when a company is sold and more on Season 8 Episode 18 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 both TV and radio in Canada.

Episode Notes

Let go before the end of fixed term contract

I signed a fixed-term contract for 1 year. Three weeks into the contract I was let go and told as it was my probation period, I wasn’t owed anything. Is this true?

• Rights if let go in the first few months of employment: Employees who have been let go while on a fixed-term contract must be given the contract balance in severance pay. Employers often mistakenly assume that probation periods are automatic. An employee must consent to a probation period at the start of employment, and it must be written in an enforceable manner.
  

Induced employment and severance

I was let go from a job I began about 7 months ago. As compensation, I was only offered vacation pay and a regular paycheck. I was recruited to this position from another job I had been employed for four years.

• Rights for recruited employees: Some short-service employees must have their years of service at the previous company acknowledged in severance payments. This is due to induced employment. Severance entitlements must consider an employee’s age, years of service and position. Employees who are recruited from their current position should look closely at the terms outlined in a new employment contract.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

A reduction in hours after maternity leave

My wife has been employed at her job for 14 years. She’s currently on maternity leave and plans to return to work. Since she took leave, there has been new ownership, and the days she previously worked are no longer available. They’ve offered to relocate her, but this will mean a reduction in hours.

• Maternity and parental leave: Employers must allow employees to return to the same position they had before taking maternity or parental leave. If that is not possible, a comparable position must be offered. Failure to do so could lead to additional damages as well as severance pay. Penalizing or terminating an employee due to pregnancy or taking parental leave is considered a human rights violation.

Major reduction in pay after new ownership

I’ve been employed in the financial sector for over a decade, earning a salary of over $300K. Recently, there has been a change in ownership, and with it, a change in the payment structure. Although I haven’t agreed to sign anything, this change will result in an almost 50% decrease in my pay.

• Changes made to wages: Employers cannot impose major changes to an employee’s position. A significant change can be a reduction of more than 10 percent in wages. An imposed change can be treated as constructive dismissal. Accepting a change can permit employers to implement future changes.

What you need to know about wrongful dismissals

• The reason for being fired: A wrongful dismissal does not refer to the reason an employee might be let go from their job. Wrongful dismissals typically occur when an employee is offered less than what they are owed in severance entitlements.
  
• A termination “for cause”: A termination for cause often results in a wrongful dismissal. Employers often incorrectly terminate employees “for cause” based on simple errors or performance issues. Employees must only be terminated for cause if they have exhibited serious misconduct.
• Timeline to pursue severance: Employees have up to two years after the initial date of termination to pursue their severance entitlements. Employers often impose their severance deadlines as a pressure tactic.
• Handle a wrongful dismissal claim on your own: Employees do not have to struggle with a wrongful dismissal claim on their own. It is in an employee’s best interest to seek out legal advice and representation to pursue their entitlements.

Employer obligations to staff after-sale

I have been employed at a chiropractor’s clinic for almost 29 years and am 58. The current owner has announced he has sold the practice and will stay on for a short while under contract. Is the new owner obligated to keep me? If I’m not kept on, what am I owed?

• Sale of a business: New ownership is not obligated to keep on the staff of the previous employer after a sale. Employees who have been let go due to the sale of a business are owed severance pay from the prior ownership. Employees who are kept on should consider the terms of their new position and ensure their previous years of service are acknowledged.
  

Asked to resign due to performance

My employer has asked me to submit my two weeks’ notice due to concerns about my performance. I’m unsure whether it’s better to resign or wait for them to let me go, as I don’t want to be let go for cause. What should I do?

• Discipline due to performance issues: Resignations must be voluntary and cannot be suggested or pressured by an employer. It is difficult to let an employee go “for cause” due to performance issues. Employers must be able to prove progressive discipline and critique have been given.

Employment Laws

• Put on an unpaid suspension: Employees cannot be placed on an unpaid suspension. All suspensions must be paid unless an employment contract stipulates otherwise.
• Permitted to take sick leave: Employees can take sick leave for as long as necessary provided they have the support of a treating doctor. Terminating an employee due to illness is considered a human rights violation.
• Report incidents of bullying or harassment: Employees can and should report all incidents of bullying and harassment to the appropriate department at their workplace. All reports of harassment must be investigated adequately.
• Entitled to a raise: Employers are not legally obligated to provide raises to employees unless an employment contract has included this as a term of employment.
• Ask to be re-instated at a job: While employees can ask to be re-instated at their former employment, employers do not have to grant this request.
• Pursue more compensation if already agreed: Before signing a severance offer employees must seek out legal advice. After signing an initial offer, it is not possible to request more severance.

PREVIOUS EPISODE: Employment Law Show S8 E17 – 5 Things employees should know when starting a job