Your employment questions answered

Sunira Chaudhri

Sunira Chaudhri

Toronto Employment Lawyer

As workplaces ease out of the pandemic, remote work, hybrid work, the gig economy and other flexible work arrangements have become extremely popular. The world of work has changed and evolved.

With summer now a fond but distant memory, many employers and employees have posed questions about how to navigate the workplace this fall.

 

As workplaces ease out of the pandemic, remote work, hybrid work, the gig economy and other flexible work arrangements have become extremely popular. The world of work has changed and evolved.

 

But with this new tailor-made employment dynamic comes a new host of legal issues to consider.

 

Below is a sampling of the most popular questions I have received as we round the corner into the fall season:

 

Q. I have worked remotely for a year-and-a-half and have never met my employer. I was hired to be a fully remote worker. Some of my colleagues in the same role, work in office all of the time or at least part of the time. Sometimes it is pretty clear they get better work opportunities, chances to travel and better perks. We do the same job though. Is this fair?

 

A. Employees are entitled to be treated fairly and consistently as among their peers. On its face, if you perform the same role as some of your colleagues, technically you should be treated similarly and offered the same perks. That said, remote workers and in-person workers may be found to perform substantially different responsibilities, even when working under similar job titles. In some ways, two different classes of employees are evolving in organizations where employees work in person and remotely. In your case, it may be more appropriate for you to compare your experience to that of your remote working peers. However, if your treatment is significantly different, for examples on issues of compensation or promotion, it’s always a good idea to raise your concerns with HR.

 

Q. I was terminated for cause two weeks ago and my employer alleged I stole from it. I did no such thing, but how do I prove that I didn’t do anything wrong?

 

A. When an employer alleges cause, the onus is on the employer to prove the wrongdoing and that the wrongdoing amounts to the level of cause. This is a very high burden. There is no burden of proof on you, the employee, to disprove the cause allegations. When an employee is terminated, the law presumes there is no “cause” and assumes that you are entitled to some damages as a result of the loss of your job. So, don’t worry about proving you did nothing wrong. Instead, get representation to help you contest the “for cause” termination and obtain damages as a result of the loss of your employment. If your employer got it wrong you may be entitled to additional damages for the manner of your dismissal.

 

Q. I have been terminated while on long-term disability due to COVID restructuring. I am not able to work or find a new job. Do I have to accept the package my employer provided to me or can I seek more?

 

A. I always advise employees to have their severance packages reviewed on termination. When terminated while on long-term disability leave, it can be frightening. You should always get your package assessed to determine if your offer is fair given your position, income, age, years of service and chances of reemployment. The fact you have disability could weigh into the legal analysis of your damages as well as it will take you longer to seek new employment. If your disability had any impact on the reason for your termination, you may be entitled to human rights damages in addition to wrongful dismissal damages.

 

Q. Our company is doing a large restructure, and we have to let go of a few long-term employees. We know that a few employees would be able to get jobs right away, however, we understand that longer service employees are usually offered bigger severance packages. What happens if any of these individuals gets a new job?

 

A. Employers can prepare termination letters that contain mitigation clauses. These clauses can limit the payout of a severance package if a terminated employee obtains new employment within a certain period after termination. For example, if an employer offers up to 12 months of salary continuance on termination, the employer can make the 12 months subject to mitigation, meaning payments would end if the terminated employee starts new work prior to the end of the 12 months. Employers must always pay out statutory minimum payments when using a mitigation clause in a termination letter. This can be a very effective away to reduce costs during a large restructure.

 

Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.

 

The content of this article is general information only and is not legal advice.

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