What your employer legally can’t do | Employment Law Show TV – S5 E26

Episode Summary

WHAT YOUR EMPLOYER LEGALLY CAN’T DO, reduced compensation, laid off as an independent contractor, and more on Season 5 Episode 26 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

Ten weeks of severance after twelve years of employment

I worked at a dental office and due to COVID-19, we’ve lost business. I was let go with ten weeks of severance pay. Is this accurate?

Employees should remember that small businesses are not exempt from paying accurate severance entitlements to their employees. Severance pay for small businesses is still calculated on the length of employment of an employee, as well as the age and position.

Segment starts at 2:08

CALL: Let go after a return from medical leave

I was off work sick for 2 years. When I returned to work, I was let go a week later. I had been there for 18 years in a managerial role. Can they do that?

Employers cannot terminate employees for taking medical leave or due to an illness, as it is a human rights violation. Employees should contact an employment lawyer in this situation in order to determine the reason for the termination. Employees who have a disability and are unlikely to return to work, are considered to have frustrated their contract.

Segment starts at 6:27

Employer introducing a pay cut due to COVID-19

My employer is going to bring in a 25% pay cut next month. She says it is the only way the company will be able to weather COVID-19, and that she has the legal right to do it. I haven’t been told how long this will be for.

Employees do not have to consent to significant changes to their terms of employment, such as a dramatic pay reduction. Significant changes can be considered a reason for constructive dismissal. Employees who are constructively dismissed can pursue their severance entitlements and should contact an employment lawyer.

Learn More
COVID-19 Layoffs can be a constructive dismissal

Segment starts at 9:34

What your employer legally can’t do

1️⃣ Demote you or cut your pay

It is important for employees to remember they do not have to accept significant pay reductions or demotions. Fundamental changes to the terms of employment are considered reasons for constructive dismissal. Employees who accept changes give their employers the right to implement changes in the future.

Segment starts at 13:01

2️⃣ Force you to quit your job or retire

Retirement and resignations must be voluntary and cannot be forced by an employer. Employers who force employees to resign or quit are effectively terminating an employee’s position.

Segment starts at 14:47

3️⃣ Refuse to pay you for overtime you have already worked

Employers have to pay an employee overtime compensation even if the work itself was not approved. Employers cannot withhold compensation and employees who feel they have not been compensated can file a complaint with the Ministry of Labour.

Segment starts at 16:28

4️⃣ Put you on a temporary layoff

Employers cannot put employees on a temporary layoff despite the COVID-19 pandemic. Temporary layoffs can be treated as a constructive dismissal and employees can pursue their severance entitlements.

Segment starts at 17:32

5️⃣ Create a toxic work environment

Employers cannot avoid resolving a toxic work environment as they are obligated to investigate and provide a healthy and safe workplace for all employees. Employees who feel their employers have not resolved the situation, should an employment lawyer.

Segment starts at 18:56

6️⃣ Not give you severance pay when you are terminated, laid off, or let go from your job

Employers are legally obligated to provide an adequate severance package to their employees upon termination without cause. Severance is based on a number of factors including the age of an employee, their position and length of employment.

Segments starts at 20:02

CALL: Fired for cause

What does it mean to be fired for cause? Is somebody owed severance in that case?

Employees who are terminated for cause have exhibited serious misconduct and have been let go as there are no other possible solutions. Employees who have been terminated for cause are not entitled to severance. Terminations for cause are typically hard to prove and often employers have wrongfully dismissed employees for cause.

Segment starts at 21:17

CALL: Increased hours of work but no increase in wages

I manage the service department at a car dealership. Most of the staff was fired at the start of the pandemic, and I’ve had to work extra days each week to keep things going. However, my pay hasn’t increased, and business hasn’t really slowed down at all.

An employee does not have to accept significant changes to the terms of their employment such as an increase in responsibilities and work hours. Employees should express their concerns to their employer in writing as they do not have to accept the changes. Changes to employment can be considered a constructive dismissal.

Watch to Learn More
Employment Law Show S5 Episode 9 – Constructive Dismissal during COVID-19

Segment starts at 24:20

Laid off and not recalled as an independent contractor

I was working as a realtor for a large real estate company for 7 years when COVID-19 hit, and I was placed on a layoff. I expected to be recalled when the housing market picked up again but was told that I wouldn’t be returning and that they can make that decision because I’m actually a contractor. Is that true?

Many individuals in real estate are often misclassified as independent contractors when they are in fact employees. Individuals who work solely for a single brokerage, follow its policies and hours, are employees. Employees who have lost their job as a real estate agent are owed severance entitlements.

Segment starts at 26:04

NEXT EPISODE: Employment Law Show S5 E27 – What your friends and family need to know about employment rights

PREVIOUS EPISODE: Employment Law Show S5 E25 – 5 Ways to determine if your Severance Package is fair