Wrongful Dismissal Primer for Canadians | Employment Law Show TV – S6 E12

Episode Summary

WRONGFUL DISMISSAL PRIMER FOR CANADIANS, demoted by the employer, harassment by a co-worker, and more on Season 6 Episode 12 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

Limited severance pay due to employment agreement

At the beginning of the pandemic, I was given a promotion by my employer, more responsibilities and pay. I was asked to sign a new employment agreement. A year later I was let go and told I had limited severance entitlements. What can I do?

• Employment contract terms: Before signing an employment agreement, employees should speak to an employment lawyer in order to determine if the contract includes provisions that limit their rights. Employment agreements can contain terminology that restricts severance entitlements in a termination clause. Employers typically encourage employees to sign new employment agreements as the contract limits severance pay. Employees have the right to refuse to sign a new contract if they are already employed.

Employer reduced the number of clients resulting in a pay decrease

My employer took some of my best clients off my account a few months ago. I earn a minimum daily retainer, plus commission from those clients. This change has cut my income by 40%. What are my options?

• Changes made to employee’s job: Employers are not permitted to reduce pay or change the salary structure in a manner that can reduce compensation for an employee significantly, such as a major reduction in commission. Changing the fundamental terms of employment without an employee’s consent can lead to constructive dismissal. Employees who believe they have been constructively dismissed should contact an employment lawyer. Accepting an initial major change in employment terms allows the employer to implement more changes in the future.

Fired after requesting time off for personal issues

I was fired shortly after asking for time off to handle some health issues. Severance was only two weeks’ pay. They claimed it was the best they could do because I was technically a contractor. What am I really owed?

• Independent contracts and employees: Employees are often incorrectly labelled as independent contractors when they are in fact, employees. Individuals who are not in control of their hours. schedule and manner of pay despite being labelled contractors, are often employees and have certain entitlements. Employees can also not be penalized or let go due to an illness as it is a human rights violation. Employees who have been let go are also entitled to severance pay, which is based on a number of factors including the age of the employee, the length of employment as well as position.

Wrongful dismissal primer for Canadians

• A wrongful dismissal means: A wrongful dismissal typically is not concerned with the “why” an employee has been let go. While it is understandable that an employee can be upset at the reason for dismissal, it is generally acceptable for an employer to let an employee go for any reason as long as adequate severance is offered. A wrongful dismissal occurs when an employee is not offered the proper severance package upon termination.
  • LEARN MORE
    Wrongful dismissal during COVID-19
• A significant change to your job: A significant change to the terms of employment without an employee’s consent can lead to constructive dismissal, which is a form of wrongful dismissal. Wrongful dismissal can occur even if an employer has not officially let an employee go.
• Severance pay is calculated using a number of factors: Adequate severance pay is often miscalculated and terminated employees assume their severance is based on their minimum entitlements. Severance pay is based on a number of factors including the age of an employee, the length of employment and the position.
• You have up to two years to pursue a claim: Employees often incorrectly assume that once given a severance deadline by employers they have to accept the severance package. Severance deadlines are a pressure tactic imposed by employers in order to force employees to accept an often inadequate severance package. Employees have up to two years after the initial date of termination to pursue their severance entitlements.
• An employment lawyer can identify wrongful dismissal: Employees who are unaware of their rights can speak to an employment lawyer and determine if they have been wrongfully dismissed. Wrongful dismissal cases are not difficult to resolve and do not generally take a long time to be settled.
  • LEARN MORE ABOUT SEVERANCE PAY
    Maximum severance pay in Ontario
    Severance Packages B.C
    Alberta severance entitlements

Supervisor refusing to resolve abuse from co-worker issue

My coworker has been losing his temper and getting confrontational with me for the last few weeks. I brought it to the attention of both my supervisor and manager, but they haven’t done anything about it.

• Bullying from a manager: Employers are obligated to resolve workplace issues and reports of harassment, bullying and abuse. Employees who have experienced incidents at work should document all occurrences in writing. Documentation can be as simple as corresponding with HR or the employer about the incidents in order to make sure there is a record in writing. Employees are entitled to work in a healthy and safe work environment free of harassment and abuse. Employees who feel the issues have not been resolved after filing proper complaints can potentially pursue a constructive dismissal.

My boss is trying to demote me from a manager position

My boss is trying to convince me to move from my management position down to a contributor role because of a comment I posted on Instagram. Do I have to consider the request? I’ve been in that job for 13 years.

• The major change made to an employee’s position: Employees are not obligated to accept a demotion imposed by an employer. Employees can refuse a demotion and if they are penalized or terminated for the refusal, or the demotion is imposed regardless of consent, can treat the demotion as constructive dismissal. Employees who have been constructively dismissed should speak to an employment lawyer and can pursue their severance entitlements.

Employee is unaware of a probation period

I just lost my job after 2 months with the company. They said I failed the probation period, but I was never told that there was a probation period. Can I get my job back?

• Probation periods: Employees are not automatically placed on a probation period and should be informed of probation in their initial employment agreement or at the start of employment. Employees who have not been informed of probation cannot be placed on probation and if let go in the first few months of employment, would be owed severance pay. Probation periods cannot be extended unreasonably by the employer.
  • WATCH TO LEARN MORE
    Employment Law Show Season 6 – 5 Common questions about probation periods

NEXT EPISODE: Employment Law Show S6 E13 – Things you should never do before talking to a lawyer

PREVIOUS EPISODE: Employment Law Show S6 E11 – 5 Questions to consider before resigning from your job