When employees call the shots | Employment Law Show TV – S9 E15

Episode Summary

YOU (EMPLOYEE) CALL THE SHOTS WHEN…, temporary layoffs, demoted due to taking leave and more on Season 9 Episode 15 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 Alberta, Ontario, and British Columbia on Canada’s only employment law show on TV and radio.

Episode Notes

Remote employee asked to come into the office

I’ve been working remotely since the pandemic, almost 5 years now. A few months ago, ownership of my company changed. The new owner wants me to come into the office a few days a week. I refused, and now my employer is saying this is considered a resignation. What can I do?

• Changes made to your job: Many employees began working from home during the pandemic and transitioned to a different working model. For those who have been working remotely for many years, it has become a new implied term of employment. Employers cannot impose major changes to an employee’s position without their consent.

Reasons for being terminated without cause

After a year and a half of employment in a sales role, I was recently let go. My CMO was let go first, and despite being assured our jobs were safe, my whole team was eventually terminated. I wanted to find out if my severance package was adequate.

• Wrongful dismissal: Regardless of the circumstances, employers are legally able to let employees go without cause. A wrongful dismissal occurs if an employer has not offered adequate severance pay upon termination. Short-service employees can be owed comparatively more severance pay than long-service employees.
  • Learn more about severance pay
    • Severance in Alberta
    • Severance packages in Ontario
    • Severance entitlements in B.C

Employee rights during a temporary layoff

I’ve worked at my current employer for over a year. A few months ago, they seemed to be on a hiring spree. Not long after that, my hours were reduced. Eventually, I was put on a layoff and told it was temporary. I’ve been off ever since. What can I do?

• Temporary layoffs: Employees do not have to accept being placed on a temporary layoff, or wait a period to be called back to work. Employees can treat a temporary layoff as a termination of employment and pursue their severance entitlements. Employers cannot legally place employees on a temporary layoff despite difficult financial circumstances.

Let go after taking stress leave

My daughter worked for a big company for 9 years. Her sister passed away suddenly, and my daughter could no longer focus on work and was suffering from severe stress. Her employer suggested she take time off. After a few weeks on leave, she was let go.

• Violating human rights: Employees who have the support of a treating doctor can take a medical leave of absence. Medical leaves are protected, and employees cannot be penalized or terminated for choosing to take time away from their employment to recover or rehabilitate. Employers who terminate employees due to taking leave could face additional legal damages.

You (employee) call the shots when…

• Put on a temporary layoff: Employers cannot legally place employees on a temporary layoff. Employees can treat their layoff as a permanent termination of employment.
  
• The terms of your job are changed: A major change to the terms of employment, such as a drastic pay cut or loss of hours, does not have to be accepted, as it is a constructive dismissal.
• Your company is sold: Employees offered new employment by the new ownership of their company, do not have to accept this offer. This can be treated as a termination, and some severance would be owed.
• Medical restrictions are not accommodated: Employers are legally obligated to accommodate an employee’s medical restrictions and do not have the power to refuse simply due to inconvenience. A failure to accommodate can be considered a human rights violation.
• A toxic work environment: Employees who have complained about a toxic work environment or workplace harassment, and have been ignored or penalized for doing so, can consider their employment terminated.

Terminated due to poor performance

My husband has worked in sales at the same company for just over 5 years. The business has gone through 3 ownership changes, and each time they keep him on. This week, without any warning, he was let go and told it was due to performance. What should his severance package look like?

• Performance management: Employees who have been with a company through various ownership changes, seniority and years of service should continue throughout. Employers who terminate employees, despite the reason, would owe severance pay based on the years of service, as well as age and position.

Demoted after asking for accommodation

I’ve been on medical leave for months. My doctor recently sent an updated assessment to my employer, clearing me to return to work with some restrictions. But now my boss says the temporary accommodation I asked for is unreasonable, and I’ll likely be demoted. Can they do that?

• A duty to accommodate: Employees cannot be penalized due to necessary accommodations. Employers must make all efforts to accommodate an employee up to the point of undue hardship.
  

Employment rights

• Paid training programs: Employers who demand that employees attend specific training programs must pay employees to attend.
• Approved for vacation: Vacation time can be revoked by an employer if it has not been relied upon by the employee.
• Annual bonus revoked: Employers cannot revoke a bonus if it is considered to be a regular term of employment and compensation.
• Pay deducted by an employer: Employers cannot legally deduct an employee’s pay.
• Let go ‘for cause’: While a termination “for cause” leads to a loss of severance pay, employers typically do not have a justifiable reason to terminate an employee in this manner.

PREVIOUS EPISODE: Employment Law Show S9 E14 – 5 Key questions employees should ask about resignations