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Howard Levitt: Here are the Answers to Common Workplace Law Questions about Severance, Wrongful Dismissal and More

posted 2 years ago

Employees ask us all the time about their rights and obligations when it comes to their employment situation. Here’s a look at some of the most common workplace law questions that come our way.

Q: How much severance am I entitled to?

A: Unless fired for serious misconduct, usually after written warnings, you are entitled to wrongful dismissal damages between 2–27 months, depending on your age, position, length of service, earnings and re-employability. The importance of length of service is generally exaggerated as employees working a few weeks can be entitled to as much as a year and employees working decades can be entitled to as little as one year. Cause for discharge is very rare and most cases settle well before trial if you are well represented.

Q: Can I be sued for resigning on two-weeks notice?

A: Assuming there isn’t a contract stipulating a notice of resignation – and there seldom is – the employee must provide whatever notice is reasonably required to give the employer time to replace them. That could be many months for some jobs. If such notice is not provided, the employer can sue for their damages from not receiving sufficient notice.

Q: If you decline a transfer to a new position, can you be fired?

A: If it is an actual “offer” of a new position which is your choice to take or not, you can always decline. But if you are transferred to the new position and it is made clear that there is no choice, then, unless that new job would constitute a constructive dismissal, for example a demotion, the employer has the right to make the move. Refusal by the employee would be an abandonment of one’s employment.

Q: Can an employer fire me without a good reason during the probationary period?

A: No. The word “probation” actually means an employer has to provide an employee with a fair opportunity to demonstrate that they can do the job, provide them some feedback and measure them against reasonable standards. If a probationary employee is fired without cause or without being given reasonable opportunity to demonstrate their ability to do the job, they will be entitled to wrongful dismissal damages. Those damages will generally be less than if they were not on probation and in evaluating them, employer can consider compatibility with the workplace, which would never be cause for discharge normally. Of course, a validly worded contract can change this.

Q: I have sued for wrongful dismissal and my employer offered me my job back. Must I return?

A: Unless something occurred (beyond being fired) that makes it objectively unreasonable for you to accept the offer of reinstatement, you must go back to work. If you don’t, you will lose any damages beyond the date you refused to return or ESA minimums.

QIf I think my workplace is unsafe, do I have the right to stay home?

A: While you have the right to refuse work that is objectively unsafe, it is not your opinion that matters. Rather, a Ministry of Labour Inspector must make a determination on whether your workplace is safe. You can refuse to work while their investigation is ongoing, but if they deem your workplace to be safe you must either return or quit.

BY HOWARD LEVITT AND ALYSSA SUDDARD

Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada. Alyssa Suddard is an articling student at Levitt Sheikh.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-here-are-the-answers-to-common-workplace-law-questions-about-severance-wrongful-dismissal-and-more

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