Through my many years of experience dealing with employment matters, I have come across countless mistakes made by companies that often land them in legal hot water.
Here are five of the most common mistakes employers make when it comes to employees’ rights — and what employees can do if their employer makes them.
1. Assuming it’s okay to put an employee on a temporary layoff
Employers often believe that they have the authority to place an employee on a temporary layoff, either on a whim or due to unavoidable events or economic developments — including a pandemic.
Your employer, however, doesn’t have the automatic right to cut off your work and pay, even when times are tough for the company. Unless you agree to the layoff or have given the company permission to lay you off temporarily through a properly structured employment contract, that move can legally be interpreted as a termination of your employment. You can claim constructive dismissal through an employment lawyer at Samfiru Tumarkin LLP and get a full severance package.
READ MORE: Running out of time to address your layoff? What to know about layoff limitation periods
2. Firing an employee for cause when it isn’t actually warranted
A termination for cause is a situation reserved for the most egregious and serious forms of workplace misconduct, such as insubordination or theft. It allows an employer to fire an employee without a severance package or the ability to collect employment insurance from the government. Given the financial penalty this type of dismissal imposes on an employee, a dismissal for cause is an extremely difficult case to prove.
But in my experience, that doesn’t stop employers from trying to wield it in unsuitable situations, such as when an employee is late for multiple shifts, misses performance targets or is too sick to work. It is extremely likely that those incidents fall well short of a true termination for cause.
If your employer lets you go and cites a termination for cause, you should always check with an employment lawyer to find out if you are actually owed severance, and if so, how much you should receive.
READ MORE: The most common myths about severance pay, according to an employment lawyer
3. Making changes to an employee’s job or pay without their permission
An employer may think they alone can determine what an employee’s job looks like, the duties they must perform and how much they should be paid. That is simply not true.
When someone is hired, they are joining the company based on certain terms agreed upon by both employer and employee, and usually outlined within a detailed employment agreement. At no point in the employment relationship can either the employer or employee make a one-sided decision to change any of those aspects.
If your employer decides to significantly reduce your pay, slash your commission, or diminish or overload your work responsibilities, you have the right to refuse the change, and can pursue a constructive dismissal claim for severance.
4. Only providing the minimum (or no) severance pay
When someone is let go without cause, they should receive a complete severance package that considers all the appropriate factors, including age, length of employment and position. In my firm’s experience over nearly two decades and tens of thousands of clients, we have found that employers often ignore this fact or are unaware of their legal responsibilities.
Instead, employers might only provide the minimum amount of severance as required by provincial legislation (a few weeks’ pay at most), two weeks’ pay, or no compensation at all.
Our common law, however, requires a company to provide appropriate severance – as much as 24 months’ pay. An employee has been wrongfully dismissed when their company fails to meet that standard.
READ MORE: Do you lose severance if you don’t sign by your employer’s deadline? Lawyer explains why not
I always stress that you should have your severance package reviewed before signing it so that an employment lawyer at Samfiru Tumarkin LLP can ensure that your rights have been respected.
5. Refusing to make accommodation for an employee with a medical condition
A company has an obligation to accommodate an employee with a medical condition that impacts their ability to carry out their duties.
If you have a note from your doctor that outlines your limitations, your employer must comply with those restrictions — even if doing so presents some difficulty for the company. This might involve modified duties or hours of work, or perhaps a work-from-home arrangement.
A business can’t shy away from their legal duty to accommodate without attempting to adapt accordingly. If your employer refuses to accommodate, you may be owed human rights damages.
Not sure if your employer has made a mistake about your employment rights? Need advice from an experienced employment lawyer?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.