What you should know about workplace investigations | Employment Law Show TV – S8 E01

Episode Summary

WHAT YOU SHOULD KNOW ABOUT WORKPLACE INVESTIGATIONS, induced employment, overtime pay, and more on Season 8 Episode 01 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 and British Columbia, on the only employment law show on both TV and radio in Canada.

Episode Notes

Let go due to voicing complaint about unpaid wages

Despite working many overtime hours, my employer initially didn’t offer any overtime pay due to ongoing financial difficulties. After voicing a complaint, I was eventually let go due to “business reasons”. What are my rights?

• Reprisals and unpaid wages: Employers cannot penalize or terminate an employee as a result of voicing a complaint to protect their rights. Employees are within their rights to request overtime pay if they have worked overtime hours. A reprisal by an employer is illegal and can lead to additional legal consequences for an employer.
  • Learn more about reprisals
    • Reprisals in Alberta
    • Workplace reprisals in Ontario

Employee misclassification and severance

After five years at a real estate agency, I was terminated while on stress leave. During my first few years at the brokerage, I was classified as an independent contractor, but then later an employee. The severance pay offered was 3 weeks for my years considered an employee.

• Independent contractors and employees: Many employees are mistakenly classified as independent contractors by their employers. A misclassification can lead to detrimental consequences for employees, such as a loss of vacation pay, severance, etc.
• Severance packages for terminated employees: Employers are within their rights to terminate employees for any reason, as long as adequate severance pay is offered. Severance will be based on an employee’s age, years of service as well as their position. All elements of an employee’s compensation must be included in a severance package.
  • Learn more about Severance Pay
    Severance in B.C
    Severance pay in Ontario

Induced employment and let go shortly after

My son was hired away from the company he was employed at for over twelve years. After three months he was let go and only offered two weeks’ severance pay.

• Recruited by another company: Employers must take into consideration the previous years of service when terminating an employee who has been recruited. Induced employment leads to an enhanced severance package for the terminated employee.

Employer refusing to accommodate medical condition

My friend was diagnosed with cancer and is currently back to work on modified duties. Her employer keeps indicating he’d like her to return to her previous position.

• A duty to accommodate: Employers are obligated to provide accommodations to employees who have a medical condition. Employees should provide their employers with the necessary restrictions and limitations suggested by a treating doctor. A refusal to accommodate can be considered a human rights violation.

What you should know about workplace investigations

• Employers are obligated to conduct a workplace investigation: All employers are obligated to conduct a workplace investigation once a complaint regarding harassment or bullying has been brought forth. Employers cannot ignore complaints and must take all complaints seriously. This can mean hiring an external investigator to ensure the matter is dealt with appropriately.
  
• Resign with severance: In the event that an employer fails to conduct a proper investigation, employees can resign from their employment. Unlike a resignation under normal circumstances, employees would still be owed severance pay due to the toxic nature of the workplace.
• Fired following a workplace investigation: Employees fired due to a workplace investigation could still be owed severance pay. Employment that is terminated as a result of voicing harassment and discrimination complaints is considered to be a reprisal.

Refused overtime pay due to industry

After working in the oil industry, I amassed a significant amount of overtime, but my boss told me I was not owed any extra pay due to our industry. Is this true?

• Overtime pay: Some industries do have exemptions regarding overtime hours and pay. In order to determine rights to overtime pay, employees should look closely at the terms outlined in their employment contract. An employment contract can specify the expected hours of work of an employee and possible overtime. Salaried employees are still owed overtime pay despite their pay structure.

Employment rights questions

• Terminated despite doctor’s note: Employers cannot terminate an employee due to an illness or taking sick leave. A medical leave is considered to be a job-protected leave and a termination can be considered a human rights violation.
• Bullied at the workplace: All employees are entitled to a safe and harassment-free workplace. Employers that fail to investigate and resolve complaints regarding bullying and discrimination have committed a human rights violation. Employees must record and document all incidents in the workplace in order to support their complaints.
• Placed on a layoff: Employees do not have to accept being placed on a temporary layoff. Employees can consider a layoff a termination of employment and pursue their rights to severance.

NEXT EPISODE: Employment Law Show S8 02 – Quick guide to social media in the workplace

PREVIOUS EPISODE: Employment Law Show S7 E19 – 5 Common Employment Law terms