Wrongful Dismissals During COVID-19 | Employment Law Show TV – S4 E24

Episode Summary

WRONGFUL DISMISSALS DURING COVID-19, the CEWS and constructive dismissal, negative performance reviews, and more on Season 4 Episode 24 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

Hudson’s Bay pay reduction and layoffs

Hudson’s Bay Company laid off around 100 Toronto employees – just one day after reducing their pay by 25%.

Lior explains why HBC’s approach is unconscionable, especially during the coronavirus pandemic.

Segment starts at 2:10

Using Vacation before Layoff

My wife was given a notice for temporary layoff from her employer. They want her to use her vacation time before going on EI. She has worked in sales at the company for 22 years. What will she lose out on if she accepts this?

An employer can tell an employee when they want them to take a vacation, even if the employee doesn’t want to. The bigger issue here is the temporary layoff itself. Once an employee is put on a layoff, you can either accept it or treat it as a termination. A temporary layoff is actually illegal, meaning you have the right to treat it as a termination and collect your severance. If you accept a layoff but eventually go back to work, your employer has the right to lay you off a second time.

Segment starts at 4:50

Reacting to Negative Performance Reviews

I work in a call centre, where calls have increased significantly since the coronavirus pandemic started. My employer is starting to write me up for “interpretive issues.” How legitimate are these negative performance reviews?

If an employer’s expectations regarding performance are unreasonable, an employee cannot be disciplined for not meeting the expectations. Often when companies write up a negative performance review, they are trying to build a case for a termination for cause.  If you’ve received a meritless negative performance review, don’t be silent. Write an email in response and outline in a direct way why their expectations are unreasonable, and why it is unfair to discipline you for it. If your role has changed significantly, you could have a case for constructive dismissal.

Segment starts at 7:33

Wrongful Dismissals During COVID-19

1️⃣  What is a Wrongful Dismissal?

A wrongful dismissal occurs when an employee is terminated from their job, but not given proper compensation in the form of severance pay (severance package) or working notice.

Segment starts at 11:30

2️⃣  Identifying Wrongful Dismissal

If your job has changed significantly, it could be a wrongful dismissal or constructive dismissal. If you’ve been let go and offered a severance package, there’s a 90% chance you’ve been let go without full and proper compensation, and it’s a wrongful dismissal. The easy way to confirm this is to go to Pocket Employment Lawyer and use our Severance Pay Calculator.

Segment starts at 13:08

3️⃣  How Common Are Wrongful Dismissals?

Under normal circumstances, 90% of the time a person is let go they’ve been wrongfully dismissed. During the pandemic, it has become even more common.  Chances are if you’ve been let go, you are probably owed a lot more. Get advice before you sign off on any severance offer your employer presents to you.

Segment starts at 14:12

4️⃣  How Difficult is it to Resolve a Wrongful Dismissal?

The majority of wrongful dismissal disputes are resolved in a matter of weeks.

Segment starts at 15:33

5️⃣  What to do if you are Laid Off

If you’ve been let go during the COVID-19 pandemic, and have possibly been wrongfully dismissed, go to Pocket Employment Lawyer. Contact an employment lawyer and have a copy of your employment contract handy.

Segment starts at 16:31

Employer Cuts Pay While Using CEWS

My employer is going to cut my pay by 25%, and pay the other 75% of my wages through the Canada Emergency Wage Subsidy program. The contract they gave me about this says that if I accept this change, I waive my right to a constructive dismissal. What does that mean?

A reduction in pay during the coronavirus pandemic can be treated as a constructive dismissal. A constructive dismissal allows an employee to treat their job as being terminated, resulting in a full severance package.

Segment starts at 17:50

Employer Won’t Take Me Back From Illness

I took a day off work due to illness. My employer told me to quarantine for 14 days. After that period, they refused to take me back unless I took a COVID-19 test. Despite getting a note from my doctor, they refused to bring me back, and let me go. Can they do that?

If you’re cleared by your doctor to return to work after suffering from an illness, your employer can’t impose additional conditions. Your employer should have allowed you to return to work, but rather they terminated your employment.  According to our Severance Pay Calculator, you’re owed somewhere between 3-4 months’ pay.

Segment starts at 22:32

Contractor Not Given Severance

My employer just told me they no longer afford my services. However, the company is actually generating MORE business because of the pandemic. When I asked about severance after 4 years, they said they don’t owe me anything because I was a contractor. Is that true?

Chances are that after four years of working full-time hours you are likely considered by the law to be an employee. This is important because you could be owed vacation pay, holiday pay, overtime pay, and severance. After four years you could be owed six months’ pay, and maybe more. Most ‘contractors’ are actually employees and have a right to severance pay when their company parts ways with them.

Segment starts at 25:20

New Employment Contracts During COVID-19

We were just handed new employment contracts and asked to sign them by next Friday. Our company is still up and running, but who knows what will happen over the next few weeks. Do we have to sign the new paperwork?

An employee does not have to sign a new employment contract during the course of their employment – especially one that seeks to reduce their severance entitlements during termination.

Segment starts at 27:02

Next Episode: Employment Law Show S4 E25 – Recalled from a Temporary Layoff

Previous Episode: Employment Law Show S4 E23 – Employment Law Questions During COVID-19