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[Music] [Music] well good day and welcome back employment live show good to have you along again this week john scholes and founding partners sam fieru to mark and llp the most positively reviewed employment law firm in the land that is leora sanfira good to have you here i know you've got questions you're probably waiting for the show i think i've thought about 10 different things we might cover it on the show because we take emails we take phone calls from the radio show all kinds of websites we have offered up for you absolutely free for you to answer your questions so we'll get to a bunch of that today including five things to know about employment contracts what contracts exactly you may not have one which might be a good thing we'll get to that later but we always start with the phone call if you need to make it anytime 1-855-821-5900 help at employmentlawyer.ca that's the email address here we go pal what do you got to kick us off uh well john it's really been another exciting week anytime i get to answer people and talk to people to me it's exciting i enjoy doing that i like to help people and then mostly i like to educate people on their rights that's why we're here on the show for the next 30 minutes to educate you on your rights you may not know a lot of the things we talk about you may not realize the extent to which you have rights you have entitlements there's things that you can do there's options that you have well we're here to educate you on those and tell you what you need to know whether you've lost your job or worried about job security maybe you've been told to train your replacement what can you do about that maybe your boss is not treating you properly trying to get you to resign should you resign let's talk about that and of course severance packages we deal with that on every show and i deal with that all the time in the office and if anything that we say or anything you learn today triggers something raises more questions there's more things you want to discuss don't hesitate you can always reach out to me in the office happy to have a chat with you privately we'll give you that contact information throughout the show so stay tuned for that but i always like to start off with a situation or an interesting question that i got throughout the week well probably the the biggest question one of the biggest questions i've been getting over the past number of weeks has to do with being put on an unpaid leave of absence we've been hearing that a lot in the context of vaccinations for those employees that have not gotten the vaccine we see employers putting them on an unpaid leave of absence so i've been getting the question can they do that how long can they do that for and what are my rights generally so let's start with the idea that an employer never really has the right to put you on an unpaid leave of absence an unpaid leave of absence could also be considered a temporary layoff anytime you're not working and not getting paid you've been laid off and there's no right for an employer to do that meaning if you've been put on an unpaid leave of absence you have really two choices choice number one is you can accept it and you can wait at home and hope that at some point your employer changes its mind and calls you back to work obviously that is your right and how long are you going to be on that not paid leave of absence i don't know it's going to be until your employer decides to bring you back if that happens so all that is option number one option number two is very different option number two is that you make the decision to treat that unpaid leave of absence as a termination of your employment we call that constructive dismissal you can say to your employer no i'm not accepting that by putting me on this unpaid leave of absence you've terminated my employment now you have to pay me severance that is true anytime your employer puts you on an unpaid leave of absence and it's certainly true these days with respect to vaccines so if your employer puts you on an unpaid leave of absence because you didn't get the vaccine or you didn't disclose your status that is a right that you have to treat this as in as a termination now there's two exceptions to this number one is if you're a unionized employee none of this applies to you by the way nothing we really talk about on the show applies to unionized employees it applies to non-union employees and the second situation is if there's a government mandate that applies to you so if your employer has no choice but to put you off work because the government has intervened and imposed a mandate that's different there's not going to be much that you can do it's not going to be a constructive dismissal but if there's no government mandate then 98 of employees don't have a government mandate that applies to them so if there's no government mandate constructive dismissal should come to mind your employer does not have an automatic right to put you on an unpaid leave of absence does that change if it's an unpaid suspension for whatever work reasons maybe you messed up and they're saying you know we're going to put you off work for a while but we're not paying you no it's exactly the same an employer also doesn't have a right to push on an unpaid suspension that said if your employer says you did something wrong i'm going to put you off for a day or two for a suspension of a day or two there's probably not going to be much that you're going to want to do even though again not necessarily something your employer is allowed to do if it's a day or two we may let the employer get away with it but if it's an indefinite suspension no no reason to do that no reason to accept it they don't have a right to do it you can treat that as a termination i guess you said in the past that if they do that sort of thing while they investigate what you did wrong they're kind of they've already punished you because they're not paying you so some employers say well there's an allegation you did something wrong we're going to investigate that while we're investigating we're going to put you off on an unpaid leave of absence no unpaid leave of absence is a disciplinary measure so you're disciplining someone while you're trying to determine if they should be disciplined it's one thing to say we're going while we're investigating we're going to put you off work on a paid leave of absence sure but if you're going to punish someone by not paying them while you determine if there should be punishment that's wrong and that's illegal employmentlawyer.ca that's always the website you want to go to thing with with all things considered with the firm as well as how to find a radio show near you across this country where you can catch that pretty much on a weekly basis if not more than that for an hour at a time lots of good information we always get a ton of phone calls from listeners on the show some of them are so good and interesting we'd like to play them back on our tv show so we're going to do the first phone call for today right now now i'm an employer a small business an employee who's 62 years old being with the company for five years is not working out it just seems like this particular employee is getting progressively worse and worse and making mistakes i feel like i have no other choice but to terminate this employee and i know it's going to cost me severance what could i expect to pay for so it's a good question we get a lot of questions from employers as well on our radio shows etc so let's answer that if he wants to try to let this employee go without severance that employer has to do some work first clearly this employee is making some mistakes not doing a good job so the employer has to do some work before it could terminate him without severance that means it has to provide some warnings it has to provide something in writing saying here's what you did wrong here's what we need you to improve and by the way if you're not going to do that we're going to have to consider letting you go you have to have these let's say three warnings and then if the employee is still not getting it still making mistakes still doing a good job maybe then he can consider terminating that employee for cause without any severance that's difficult to do on the other hand if that employer doesn't want to put in that work they just want to let the employee go now and just pay him what he's owed well then sure that employee is owed severance and it's important to remember that even if that employee is making mistakes and not doing the best job if he is let go in most of those cases he's going to be owed severance his full severance so the question of course becomes how much severance well let's go to our friendly tool a user-friendly tool pocketemploymentlawyer.ca let's plug that information into the severance calculator and let's see right now how much severance this this person not doing the best job but how much severance he's owed so we know that this person has been there for five years 62 years old his employer's wondering how much severance well you see at the bottom there he's up eight to potentially as much as 10 months of pay okay 8 to 10 months pay potentially is what is owing to this employee now this assumes that the employer is not inclined to put in the time and the effort to try to build up a case for cause they just want the employee gone and by the way if you're an employee if you did something wrong does not mean that your employer can just let you go without severance in most cases full severance is owed so this employer has to do their homework if they want to get out without spending a penny but if they got the bankroll it's going to cost them eight to ten months almost 60 yeah eight to ten months and remember the rule that an employer can generally let you go at any time but and this is the big one severance has to be paid and for this guy could be as much as 10 months pay terminationquestions.com yet another resource for you to use absolutely free and anonymous ask your questions there they will get answered by lior or a member of his team martin first one for the day says i was told i had to be fully vaccinated against covet 19 by a certain date i love my job so i decided to comply and got my first shot unfortunately i couldn't get the second one until after the deadline my boss initially gave me an extension but then changed her mind a week later i was fired once the deadline hit do i have any rights well the right that uh martin has is the right to get severance now i i may say well his employer could have and should have maybe given him a few extra days to get that second shot ultimately we can't undo that we can't make his employer give him more time it's simply a question of dealing with the termination and by the way the same thing applies to you if you've been let go while you're on the fence with respect to the vaccine we can't undo that termination we can't stop your employer from terminating your employment what we can do is make sure that your employer pays you severance they may not do that off the bat they may say no no it's a health and safety issue we're going to have to avoid paying you severance no in most cases seven still has to be paid same with martin can't do much about it but he's still going to be out severance i don't know his age is position and his length of employment if he's a long service employee that could mean as much as 24 months payout to him so martin should give me a call so we can chat a bit about more about what his actual severance entitlements are also coming up what you need to know about employment contracts a busy segment coming up so make sure you stick around for it in the meantime leora just mentioned the phone number to call 1-855-821 email works as well help employmentlawyer.ca we'll continue this is the employment law show people think you should go to the government to get severance pay employmentlawyer.ca says that is a myth government can only help you get minimum severance but not everything you're entitled to always check with the employment lawyer first at employmentlawyer.ca if your long-term disability claim is denied should you appeal appeals often fail because insurance companies control the process so long as you appeal you're playing by their rules you should never appeal the denial of your disability benefits appeals are just a mirage of false hope don't that's their process take it out of their hands and fight for your rights with our help go to disabilityrights.ca discover your rights fight back and get what you're owed people think their employer can make changes to their job employmentlawyer.ca says that is a myth your employer can't change your pay hours or duties you may be entitled to full severance pay always check with the employment lawyer first at employmentlawyer.ca [Music] all right welcome back employment law show john scholes the or samphiro reaching out to leor anytime again nine hundred the 1-855-821-5900 help at employment lawyer dot ca san figure to market llp the most positively reviewed employment law firm in this entire country okay this is really important stuff we're gonna talk about five things you need to know about employment contracts you may be on the cusp of signing one you may have signed one and been sitting on it for years you don't or maybe you don't have one we don't know but it's really important that you get this information down number one i love this one right off the top it is you are like you are likely better off not better off not signing assigning an employment contract most people are saying wait what yeah so let's start by explaining that we're using the term employment contract an employment contract an employment agreement a job offer letter they're the same thing it's a document that you sign usually when you start a job outlining terms of employment now i know people are shocked by that i know it because i've talked to hundreds of people on this issue for an employee for an employee it is far far better not to have an employment agreement to start a job on a handshake grab a napkin jot something down that is better than having a 10-page document i assure you for an employee for an employer much much much better to have a properly full robust employment agreement so for an employee the reason why it's better not to have an employment agreement is because the law already provides good rights that you have you have some significant rights there there whether you realize it or not the only thing an employment agreement does is either eliminate some of the rights that you would otherwise have or even worse it takes them and it gives them to the employer i'm going to give you some examples for example the law says your employment your employer cannot change the terms of your employment they can't reduce your job your pay they can't change your job responsibilities but an employment agreement can say yes we can do that we can change your job responsibilities your hours your pay and if your employment agreement says that you're fine your employer can do it your employment agreement may also say that your employer can eliminate most of your severance if they let you go without that employment agreement you could be out 24 months pay you sign an employment agreement that 24 months becomes eight weeks pay it could cost you tens if not hundreds of thousands of dollars there's that's just two examples john there's many others so for an employee don't insist on that 10-page document an email from your employer is good enough a handshake at the coffee shop is good enough you're better off as an employee not to have an employment agreement than to sign a lengthy and extensive one number two is this just because there's a termination clause in your contract it does not mean it's always enforceable right so exactly and i touched on the fact that one of the things an employment agreement tries to do is to reduce your future severance entitlements you may sign an employment agreement that tries to eliminate the majority of them now the good news is that for most people for reasons i'm not even going to get into those terms or those termination clauses are not enforceable our courts have decided that in many cases they're not enforceable meaning you're still owed your full severance so what i want you to number one to do is do first of all don't sign an employment agreement thinking well it's not going to be enforceable so i'm going to sign it that's a bad idea but if you did sign an employment agreement and now you've lost your job don't assume that just because your employment agreement tries to limit your entitlements that it in fact does so in many cases it does not so we have to sit down and review it and send me a copy i can take a look and i can tell you in 30 seconds flat whether or not that termination clause limits your entitlements or whether we can disregard it and then you can still get your full severance we're talking about well this time five things you need to know about employment contracts number three is this and you've already talked about it we'll dig a little deeper your employer can't make unilateral changes to the terms of your contract so if you sign an employment agreement that provides for certain rights certain benefits compensation your employer cannot change those unilaterally no more than you can so if you've agreed to a salary of 90 000 in your employment contract you can't just walk in and say tomorrow you're paying me a hundred thousand it would be nice right by the same your employer can't say tomorrow you're making 70 000 because we have a contract that says 90. now the exception to that i touched on that earlier is if the contract specifically says your salary is 90 but we the employer have the right to change that that's a very bad term to have if you think about it essentially what you're agreeing is you'll pay me whatever you want employer no one is going to want that but in most cases people don't even realize that that's what they've done so your employer cannot make significant changes to terms of employment unless the contract allows them to do that anytime your employer changes those terms you should think constructive dismissal you should think about the idea that you can treat that change as a termination of your employment and get severance of course before you jump ahead and do that you always want to run it by me to make sure that what your employer did was in fact a constructive dismissal but no an employer can't say my contract my company i'm changing it no that's a constructive dismissal in many cases two more of these to go but just as little sidebar it's just becoming abundantly clear that there's so much more to employment contract than just how much am i getting paid when are my holidays most people they look at that right yeah i want to make sure my salary is right it's very important for me to get my four weeks vacation because i want to take a vacation with the family i understand that i also want to make sure that i'm going to get bonus a nice bonus and they look at those things and they forget everything else well think about it this way john you may have signed an employment agreement that says we can let you go at any time for any reason oh and by the way if we do that we're only going to pay you two weeks pay and you can't compete in the industry for two years do you know now why we can't just look at salary and and benefits there's other things you have to look at which is exactly what we're talking about today number four is this on the things you need to know about employment contracts the company can't force you to accept a new employment contract so you've already been working for a company you've been there for a number of years all of a sudden an employer comes in to you and says uh now we want you to sign a new employment agreement here's a new one uh please sign it and we're asking others to sign it as well that's always bad news i have yet to see in 20 years of doing this a situation where the employer walks in with a new employment agreement so that they can provide you better terms than what you had previously it's not going to happen the reason why your employer wants you to sign a new agreement is because they realize that the previous one if you even had a previous one was just not good enough to protect the employer and they want something more robust they want to take away some rights they would otherwise have it's a bad idea to sign it you can sign that agreement and then if a month later you're let go you could be walking away from tens of thousands of dollars of severance just because you signed that agreement remember your employer can't punish you you can't be fired for cause for refusing there's a good reason not to sign it if you're not sure what it does what it says should you sign it send me a copy let's chat about it what if someone say well i signed the first one five years ago i have to sign this one absolutely not no whatever agreement you signed is the agreement that you've signed and there's absolutely no reason and now sometimes your employer may say well you know we're going to be giving you a pay raise great everyone likes a pay raise so we're going to increase your salary by two dollars an hour whatever it is but you have to sign a new employment agreement again be very suspicious because it's possible that that extra two dollars an hour is more than offset by other terms that are going to cost you tens of thousands of dollars so in some cases it may be better off to say thank you for the raise i'll i'll decline because i don't want to sign that agreement that's going to cost me a lot more than that extra two dollars an hour it brings up a good point though i mean if you do decide to sign it if it all works out to be okay don't they have to give you something some consideration for signing the agreement or it means nothing yes exactly if your employer does want you to sign a new agreement you've already been working for the company for a while now they want you to sign a new agreement they have to give you something in return for signing a pay raise a signing bonus extra vacation something that you would otherwise not be entitled to but just because they're offering you that doesn't mean you should sign it in many cases you're still better off not signing it declining and not giving up your rights all right five things you need to know about employment agreements number five could be the most important and this one's the easiest as well an employment lawyer can simply review your agreement and tell you whether it's uh good or not or negotiate terms right employment lawyer right here exactly the reality is that i review a lot of employment agreements and it's always a good idea if you're signed if you're starting a new job let me take a look at the agreement let me tell you what you need to know if there's a problem there how we can negotiate what offer or counter proposal you can make to your employer you should always be mindful of what you're signing okay certainly if you're already been working as i said earlier and now your employer wants you to sign a brand new employment agreement before you sign before you even think about signing or whether you should send me a copy let me review it let me tell you what it means whether you should sign what it changes what it doesn't change so that you're informed always happy to do that and i know you work with a lot of employers as well drafting proper agreements on the flip side but you know having said that if an employer is a little bit lazy maybe it doesn't have the resources i'll just get a document off of google and i'll use that you know employment document 101 sign this it's not always enforceable yeah illegal no it's not it's okay to go to google to find out how the maple leafs did last night in the game that you didn't watch not a good idea to go there to find a copy of an employment agreement that you can use for your business please don't do that it's a waste of time you're going to find things that are completely inappropriate that are not going to help you they are out of date that are going to cost you money if you want a proper employment agreement speak with an employment lawyer do it properly employmentlawyer.ca again that's the place you go to catch a radio show phone call number two for today is coming up right now worked for a manufacturing company in an office they laid us off two three months later they called us back again they moved me to a different department i didn't change my salary or anything a couple months ago they moved me again to another department now it's under a new management and it looks like these guys are getting rid of the old regime slowly i've been there over 30 years i don't know what my options are here so john sometimes in a situation like this where someone's job is being changed different departments we may want to think about constructive dismissal that's probably not an option for him because it appears that there's a history there of moving him around putting him in different departments giving him different jobs so not much that he can do about that right now but he says that they're kind of getting rid of the old guard and they want to bring new blood in the reality is that there's not much you can do to stop that an employer can make these changes they can let you go even though you're the most senior person there even though you may be better at your job than someone else if they want to let you go you can't stop that they're allowed to but of course they have to pay severance now this person has been at that manufacturing facility for some 30 years he's going to be right around 24 months pay so my best advice would be don't quit don't leave if you quit your job you're not going to get any compensation do your job to the best of your ability and if and when the time comes that they let you go that 24 months is owed to you if you don't get it you call me i'll get it for you that's what you have to do but the worst thing you could do is on the eve of being let go on the eve of receiving significant severance to just resign don't ever do that another phone call coming up but a break first we'll get to it now in the meantime the phone number to call leor and his team one eight five five eight two one fifty nine hundred email we use is help employment lawyer dot ca more employment law show is coming up [Music] people think contractors aren't owed severance employmentlawyer.ca says that is a myth many contractors are actually employees and are entitled to full severance pay always check with the employment lawyer first at employmentlawyer.ca how do you force insurance companies to pay long-term disability claims insurance companies deny legitimate claims all the time they're playing the odds they know that most people are just going to walk away your insurer may ignore you they may even ignore your doctors but they can't ignore us we know how insurance companies work we know their weaknesses we know how to use the legal process to force them to pay you what you're owed go to disabilityrights.ca discover your rights fight back and get what you're owed people think you are only owed two weeks pay when you lose your job employmentlawyer.ca says that is a myth you may be owed much more than two weeks per year don't settle for less always check with the employment lawyer first at employmentlawyer.ca [Music] welcome back employment law show a couple minutes to go let's squeeze in our third and final phone call from a radio show on this show right now i had a an episode where i collapsed and i spent six weeks in hospital the young fellows that i hired i was asked by my employer to start training him up he took over my position i've been told several times that there are projects all over the province i offered my services my employer said well subsequently i've not been allowed to come back to work that's nice well i mean not a a good employer there is there so the first thing i'd want to understand here is whether or not the fact that he's essentially being let go and put on the left whatever you want to call it whether that has something to do with this medical condition he had a medical condition he collapsed at work he may still not be healthy and if that's why his employer is saying you're out of here well that's a human rights violation you can't do that so beyond just severance he could build human rights damages in some cases he may even be able to get reinstated because what the employer did is illegal same with you if you're being mistreated let go your employer won't work with you because you have a medical issue well again that's a human rights violation that's not legal now if the reason his employer is putting him off work is not related to his medical condition maybe he's now in perfect health then it simply becomes a regular termination and he's owed severance training your replacement in and of itself as uncomfortable as it is is not illegal if you lose your job your employer has to pay you severance that's really their obligation so there's a lot to discuss here but i wanted to remind everyone number one you can't be let go you can't be laid off you can't be put off work because of a serious medical condition you have to be accommodated your employer has to give you the time to get better otherwise it's simply a matter of severance got time for a terminationquestions.com question from ishaan ishaan says i was would by a competitor to join the company as a senior manager after a year they felt it wasn't working out and offered me two weeks pay plus another two weeks if i accepted the offer within five days is that a good deal i'm 48 and made 120 000 in my first year so we know that he's been there for a year and remember what i've said often on the show that short service employees are treated disproportionately better than long service employees now there's another factor here that he was recruited from another job if you recruited from another job and then let go in the first few years you may be owed enhanced severance that recognizes the time with the previous company so there's that to consider but even on the basis of just one year of employment he's owed a lot more than the four weeks that he's been offered let's go once one last time to pocket employment lawyer dot ca let's use our severance calculator tool and let's see how much compensation this person is actually owed so we know he's a senior manager with just over a year of employment 48 years old and his employer believes maybe that generously four weeks is all he's owed you can see at the bottom of the screen he's actually owed four to six months pay four to six months pay and that could be even more based on the fact that he was recruited from another job so yes john even after one and a half years he could be out as much as six months pay same with you if you lost your job six months work two months work a year whatever their short service your severance often is calculated in months not weeks especially if you've got 30 years with the previous company that could be expensive for this company it could they could owe them as much as two years pay even though he's only worked there for a year so if you've been recruited from another job even more important than ever to get advice make sure you get what you're right inducement the legal term right that's the term exactly again terminationquestions.com thank you we shawn appreciate that you want to reach out to a phone call as we close off for another show here's how you do it hundred all those 1-855-821-5900 calls came from employment lawyer dot ca that's our radio show and finally the email address help employment lawyer dot ca write in ask the questions they will be answered by member of leor and his team really quickly we'll catch you again next time employment law show [Music] closed captioning of this program is brought to you in part by severancepaycalculator.com find out how much you are owed right now severancepaycalculator.com