CITY24 - Wednesday, May 22, 2024 - 12:00 a.m. (ET) - Segment #44

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to Ask a Lawyer here on CP24. Good to have you along for this 30-minute ride. You will learn a lot. That much I can almost guarantee you. John Scholes here; joining me this week, Jon Pinkus from EmploymentLawyer.ca. Jon will be on your screen momentarily. And you're always asked, in fact, encouraged to reach out to Jon when we're not doing this TV show. How do you do that? 1-855-821-5900. Ask@EmploymentLawyer.ca. And also the website PocketEmploymentLawyer.ca, which we'll dig a little deeper into in just a few minutes here with Jon. As well, wrongful dismissal. What is it? That's the main topic in just a little bit. And we'll get to some phone calls from our long-running radio shows. And including here in the GTA, which you can join us Sundays 1:00 pm. Call into the show. Maybe you'll make it on this TV show as well. And that would be NewsTalk 1010, again, Sundays at 1:00 pm. Okay, that said, we're set to go with the main topic in just a bit. But we always start off with a case of the day or a week that was. Mr Pinkus, what do you got going on, pal? How are you? Well, it's good to be back. I'm good. And I'm happy to be talking about employment law today, because employment law is dynamic. It's always changing. The workplace is always changing. It's always evolving. So when the law changes, people need to know what their rights are, employees and employers alike. And if you make a mistake when it comes to your workplace rights, whether you're an employee or an employer, those mistakes can be disastrous. Perfect example of both these things very recently. Someone came to me who had been working in a niche industry, in the tech industry, but a very niche subset of the tech industry his whole life. And he, about two years ago, got a new job with a small startup tech company. And very recently, they said, you know what? You're a sales manager, but sales have been down. And we're not really happy with you, so we're going to let you go. And we have this contract that you signed when you started with us two years ago. So we are going to give you two weeks' pay. And if you sign this nice release we've prepared for you, we'll give you another two weeks' pay. That's what he told me when he came to me. And he said, Jon, I am so stressed out, because not only have they told me that they're only going to give me four weeks to find a new job, they're pointing to their employment contract where they say they can stop me from working for a year for any of the competition. And that's a big deal for me, because this is the industry I've worked in my whole life. All of a sudden, I take a job for two years, and it's like I'm shut out of the entire industry I've ever worked in. Well, fortunately for him, I had some good news. First of all, non-competes have been outlawed in Ontario, which is where he was, since October of 2021. So that non-compete was totally illegal. The other good news is that the termination clause that company was relying on was also totally illegal. So he was free to compete, and he was entitled to as much as four times what he was offered, a little more than four times, about four months' pay. That's going to be a significant amount of money that he's owed, and we're going to help him negotiate that. So you can see, the law is always changing. Non-competes, they've always been difficult to enforce. Now they are impossible if you've signed one after October 2021. Perfect example of how the law is always changing. And perfect example of how signing something without knowing what it is can be disastrous if you don't understand it. So the first lesson here is get advice at the time you are given those offers. Don't just sign it and say, "I'm sure it's fine. I'll deal with it later." You might not be able to. And the other thing is, even more importantly, when you are given a severance package for an employer, that's a critical time, that's a really important time. That's when you need to get advice. That's when you need to speak to an employment lawyer. It's interesting, Jon; I think it also speaks to the fact that whether you're an employee going into a job or an employer with an employment contract, it may not be-- it may not hold any water. If you're an employer, you don't want to get a... "Oh, search on Google, employment contract. Here, I'll print this off, sign it." That's going to be absolutely useless. And if you're an employee, just because you have a contract, it may, as you say, be out of date and not enforceable, yeah? Right, it always happens when you don't involve a lawyer at the first stage, right? You got to-- if you want to end right, you got to start right. And if you don't start right by getting that advice when you're creating that contract as an employer or signing that contract as an employee, you're going to have a problem later. You're going to have a problem later. As I mentioned off the top, guys, Newstalk 1010, that is our station here in the GTA. You can catch our radio show Sundays at 1:00 pm. We got lots of great phone calls every week. We pull some from that show, we play them back here 'cause it's always informative and educational. I know Jon wants to talk about our first phone call momentarily, which is coming up right now, so listen up. No garage oil changes, Jon. Right, right, right. Well, this does raise an important topic that everyone should be aware of, is that if you are an employee, you have what's called a duty of fidelity to your employer. You cannot be competing for your employer at the same time that you're working for your employer. And you wanna be very careful about this, because some things that you may not be consider competition-- you say, well, my employer's not really offering this service. Well, maybe they're planning

on offering that service. Maybe they'd like to know about this. So the key thing is you need to make your employer know, ideally in writing, 'cause if you don't put it in writing, you might have a dispute later, which looks like what's going on here. Now, if it is the case that the employer knew about this, it's not up to the employer-- it's not open to the employer, rather-- to turn around at the time of termination and say, well, I don't like this anymore, so I'm terminating your employment for cause. No, if the employer knew about it, doesn't matter if they can later argue that it might be competition. If the employer knew about it and didn't do anything about it, it's going to be very likely a wrongful dismissal. And let's take a look at the PocketEmploymentLawyer and see how much this person could be owed if it is, in fact, a wrongful dismissal. And we see that the amount is significant, right? 55 years old, for 12 years in a mechanic position. This is about $73,000 a year that this person's earning. So we're looking at 16 months' pay, 16 months' pay. So you can imagine, this is-- the stakes are huge. And that's why it's so important to get these things in writing. But if the employer can't establish that they were unaware of this, then it's going to be a wrongful dismissal. That's a significant amount. And as Jon just mentioned, PocketEmploymentLawyer.ca is where you want to go. Okay, wrongful dismissal. What is it? We'll break it down after we come back from a short break, which we're going to get into right now. Ask a Lawyer on CP24. Do you have questions about your employment rights? Ask a Lawyer is here for you; each week, experts from EmploymentLawyer.ca answer your questions. Visit cp24.com/askalawyer and watch Wednesdays at 9:30 pm on CP24. Welcome to the world of spycraft. (Dramatic music) Keep yours eyes glued to the action. Let's get down. Let's get funky! What are you concealing? You a communist sympathizer? (Whistles) It's just a job. People think you have to sign back a severance offer by a deadline, employmentlawyer.ca says that is a myth. Deadlines are used as a pressure tactic. Make sure the offer is fair before you sign. Always check with the employment lawyer first at employmentlawyer.ca New Finish Ultramax. Engineered for the toughest conditions. Dry burnt-on stains. Old dishwashers. Very hard water. New Finish Ultramax, with CycleSync technology, helps deliver the ultimate clean. [ ] Ever notice some odours don't come out in the wash? Odours like those from sweat, urine, and other musty odours can get trapped in fabrics. Try Downy Rinse & Refresh. Just add to the fabric softener drawer. It's formulated with odour-releasing technology to help remove odours 3 times better than detergent alone. Plus, it's gentle on sensitive skin and on all fabrics. Release trapped odours the first time with Downy Rinse & Refresh also available in fragrance-free. Brand Power, helping you buy better. (Light music) (Soft theme music) And welcome back to Ask a Lawyer. This is CP24. John Scholes here and the lawyer this week, rather, John Pinkus from employmentlawyer.ca. Always reach out to John when you're not watching the show. The phone number first, 1-855-821-5900. Or if you prefer to back that up with an email, that's simply ask@employmentlawyer.ca. Okay, main topic for this week is a term that people don't understand 'cause it sounds a little convoluted. What is it? We'll break it down. Wrongful dismissal is what it's called. You've heard us talk about it on the show for years and on the radio show as well. Definition of wrongful dismissal, John. I guess that's where we start, pal. What is it? It's one of the most misunderstood terms that you can find in the law because I can't tell you how often I have people come up to me, very understandably, they think this because the term kind of implies this when you hear it, and they say, "You know, my employer fired me and I was doing so well. I had a good performance review. I've never had any issues. They fired me. I think it's a wrongful dismissal." That's not what a wrongful dismissal is. Now, your employer can't fire you for any reason. They can't fire you at any time. There are certain times where your employer firing you could be discriminatory, could be a statutory breach, but your employer has broad discretion in terminating your employment and they don't necessarily have to justify it. So if there's a restructuring, if they're just unhappy, if they're just not getting along with you. The question isn't do they have a right to let you go. Most of the time, the question that we're talking about is what is the proper amount of severance that you're owed? And that can be very significant. That's a very important question because depending on your age, depending on your length of service, depending on the kind of position you

held, how hard it's gonna be to replace that, are you suffering from any medical conditions that your employer may have known about? That could be very, very significant. It could be as much as two years pay in some circumstances. So the question is very important, but the answer isn't always what people expect it to be. Right, so based on what you said there, how common is it, wrongful dismissal? I would say about 90% of people who come to me with a severance package have an inadequate severance package. And that's not a coincidence. Now, in some cases, the employer says, "Well, I think this is all that I owe." And sometimes unintentionally, they're offering an inadequate severance package. But very often, it is intentional. It's intentional because that employer, naturally, wants to save money. Of course they wanna save money. That's what th're in the business of making money and cutting costs. And one of the biggest costs are labour costs. So they're gonna try and cut down that severance as much as they can. And it's going to be up to you to decide whether you're going to speak to an employment lawyer and intervene with an employment lawyer if necessary. So based on your breakdown of what it is and how it happens, if I think I've been wrongfully dismissed in my job, what do I do? Well, the first and the most important thing to do is go to an employment lawyer. 'Cause an employment lawyer is going to do two very important things for you. First of all, they're gonna give you advice. They're gonna tell you whether the severance package that you've been offered is something that you should accept. And the second thing that they're going to do is if that severance package is inadequate, they're going to intervene on your behalf. And it's very important if you're going to negotiate a severance package to have the credibility of a lawyer intervening for you. Someone who's going to be able to take the actions necessary to enforce your entitlement if the employer doesn't agree. One of the first things that somebody comes to you, John, with their severance package, and they say, "Oh, but it's got a deadline. It's got a deadline. Is that enforceable?" It makes me nervous having that on there. Well, what I always tell clients is matters if you're going to accept the severance package. The moment that we have a discussion and we determine that it's an inadequate severance package and not one you should be accepting, that deadline goes out the window. It's meaningless. We're going to give them a proposal and we're going to give a deadline, right? So that deadline really, really, the moment you decide to negotiate your entitlements is totally meaningless. And the deadline that matters at that point is the two-year deadline. Two years from the date you get your notice of termination. Because if you miss that deadline, well then, that's really game over. John: Want to get to another phone call, John wants to answer this one. Again, reminder, any time, NEWSTALK 1010, Sundays, 1:00 p.m. That's when you reach out to us. Join us on that hour-long radio program. Call in and maybe your phone call will appear on air. We'll get to it right now, listen up. (Male caller, text on screen) What do you think, Johnny? Well, the thing that everyone should know when it comes to a medical leave for any reason, doesn't matter what the reason is, is that you are protected against discrimination for medical issues. And so in this case, it would be governed by the Canadian Human Rights Act. And the Canadian Human Rights Act protects people under what's known as disability. Disability is a term that most of the laws in Canada use. And disability is defined very, very broadly. So for example, in the Canadian Human Rights Act, it's anything physical, it's anything mental, it's alcohol dependency or drug dependency. So if you have any of these issues, and that is the reason you are not able to be at work or you're not able to be at work full time, and your employer is giving you a disadvantage as a result of that, that could be a violation of a human rights statute. And that could be a very serious issue for the employer. So the first thing that you wanna do in this circumstance is it sounds like she's been being mistreated at work. And so normally what I would say is have an employment lawyer write the letter, write a letter to get this employer to back off so you can focus on your health and not have to worry about this. And if it's a large bank, they'll know once they get a letter, they'll involve the powers that be and they'll be set straight likely at that point. If after that happens or before that happens, the bank lets this person go, this is someone who should be contacting a lawyer because it's not only going to be likely a wrongful dismissal as we discussed, because most severance packages are inadequate, but potentially a human rights violation as well. Phone call number three, that's how we roll on the show, but that's gonna come up after the break. So stick around for that as we continue more Ask a Lawyer right here on CP24. (Soft theme music) Announcer: Do you have questions about your employment rights? Ask a Lawyer is here for you. Each week, experts from employmentlawyer.ca answer your questions. Visit CP24.com/askalawyer and watch Wednesdays at 9:30 PM on CP24. Feeling sluggish or weighed down? Could be a sign that your digestive system isn't at its best. But a little Metamucil every day can help. Metamucil psyllium fiber gels to trap and remove the waste that weighs you down

and also helps lower cholesterol and slows sugar absorption to promote healthy blood sugar levels. So you can feel lighter. Lighten up every day the Metamucil way and try Metamucil Fibre + Collagen Peptides to help promote digestive health and reduce joint pain. Nuclear power is lighting the path to the future. A future where clean, reliable electricity meets rising energy needs. A future with a prosperous economy founded on job growth. A future where new medical isotopes triumph over disease. For decades, Bruce Power has provided clean, reliable energy to Ontario and cancer-fighting isotopes across the globe— —and will continue to play a vital role in powering a clean economy for the next generation. Menopause can change your hair. I have thinning happening here, which I noticed when I was taking a selfie. Using our thickening treatment fights breakage for fuller looking hair. I feel good. So I want products that are made for where I'm at. Hair Biology. So I know we agreed on price, but this car is taller than I was expecting. I like your dinosaur shirt. ( ) That's Clutch. ( ) Oh Canada!! their time has come Argentina have done it! One more Messi moment! Beyond glorious! Messi magic once again This is it...the stage is set That's what they came for!! And it is spectacular!! (Soft theme music) All right, welcome back to Ask a Lawyer. This is CP24, John Scholes here and John Pinkus from employmentlawyer.ca is with us this week. You can always reach out to John when we're not doing the show. 1-855-821-5900, ask@employmentlawyer.ca or scan that QR code on the right side of your screen for more details and information as well. Okay, phone call number three, we do them in threes here on this show. And one more reminder before the end of the show, NEWSTALK 1010, Sundays, 1:00 PM. Join us for Ask a Lawyer, or Employment Hour on the radio and call in. Maybe you'll make it on air here during this half hour. Let's get to phone call number three. (Male caller, text on screen) (Text on screen) All right, what do you think? Yeah, so that's a very interesting situation. So I'm going to assume, for our purposes today, that we're talking about an asset purchase. Usually that's what we're talking about when a new company's changing hands and the new company is asking you to sign an employment agreement. So what people need to know is when a new company takes over, the company that you were just working for, the company that has sold the business, they've just fired you. They've just fired you because, as this person said, it wasn't voluntary. This person didn't agree to work for someone new. So they fired you. And the default is if you don't go to work for the new employer, they're going to owe you some severance. The question is going to be how much severance do they owe? And to answer that question, we need to look at whether the new job is comparable, right? So this is not a constructive dismissal, because you've already been fired. The question is, do you have an obligation to take the new job? If you do, then your old employer may only owe you the minimum entitlement if you say no to the new job. If you don't take the-- If you don't take the new job and it's not comparable, then you can actually be entitled to your full severance. And here that looks like it may be the case because this person is looking like to get some changed responsibilities and some new conditions that'll basically eviscerate their ability for career advancement. When we're looking at that, we do have to compare it to what was the situation in the old job because if they were the same conditions or very similar, that could be a problem. But let's assume that it really isn't comparable. Let's pull up the Pocket Employment Lawyer and see what this person might be entitled to. And we look, after nine years earning $90,000 a year, at the age of 58, we're talking about a six-figure entitlement, right? Over $100,000. So we really, really want to look at this situation very carefully, and very important for this person to know that before they say yes or no to that job offer, you really have to sit down with an employment lawyer, look at it and make sure you make an informed decision. I want to reach into the email bag and get one on air here with the remaining time before we've got to take a break. Here it is for this week. John says: "I had to take a long-term disability due to severe stress over a year ago..." (Reading, text on screen)

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