With more and more people working from home, consulting or freelancing, who is and is not an employee in the eyes of the law is becoming an increasingly complex question.
If you are going to spend money to hire a lawyer to represent you after a termination, be sure to tell them the truth, the whole truth, and nothing but the truth. Otherwise, you’re wasting your time and theirs.
An employer does not need just cause to terminate a non-union employee but if they don’t have it, they have to provide pay in lieu of notice. In addition, if they are one of the 5% or less companies that are governed by the Canada Labour Code, they may also be subject to further sanctions over and above severance
Larger employers, having been in business long enough to get large and having had the unpleasant task of terminating employees they don’t like, understand that unless there is just cause for the termination, it has to provide an appropriate severance package. That package would be based on the employee’s age, level of responsibility and seniority.
The media was abuzz last week with a story about a university professor who denied a request for accommodation from a student in his on-line course. Part of the course required the student to meet with others for a group assignment. The others in this case were women. The student said that his firm religious beliefs prohibited him from meeting with women.
QUESTION: The other day I heard a talk by a CEO who recommended that every office/workplace should have some sort of policy about working outside regular business hours. Specifically, he was referring to this day and age of BlackBerrys and Smart Phones where people find themselves responding to or sending verbal or texted instructions outside normal working hours. What are the employees’ or employers’ obligations in these cases? If I receive a message from somebody at work on Sunday afternoon, I usually think they are an idiot or a loser because they are working on the weekend. On the other hand, if I respond to my boss at 10 p.m. on a Friday night, I think I’m a start and hope he thinks the same. In reality, unless it’s really important, he probably thinks I’m an idiot or loser.
Here is a simple rule that will keep you out of trouble: never a message from your work email that you would not want the president of the company to see. Big brother may decide to start watching at any time.
If you are terminated without just cause, you can bring a claim for pay in lieu of notice. Your obligation, however, is to mitigate your damages. That means that you must show the judge that you have made reasonable efforts to look for new employment and if you were offered reasonable alternative employment, accepted it. If you turn down that reasonable job offer, the judge will pretend you did and deduct any money you could have made from your award.
If you are not in a union, the law does not require the employer to provide you any reason at all for the termination of your employment.
QUESTION: Last week I was terminated after nine months of employment in an office position. The demands of the job were extraordinary and for the last four of those nine months I was constantly being warned that if I didn’t keep up with the workload I would be out of a job. As a result, I started showing up an hour early every day and working at least two hours past the time I was meant to go home. I did this despite the fact that I was only being paid for 40 in an effort to keep my job. Clearly, it didn’t work.