I have been terminated and my employer is pressuring me to sign a Release, what do I do?
Generally speaking, upon termination your employer will set a deadline by which it would like you to sign a release. It is in your employer’s interest that you sign a release as soon as possible to protect it from potential legal action. If there is a tight timeline for you to accept your severance package and sign the Release, you should request an extension to allow you time to consult an employment lawyer to assist you with assessing your severance package. Remember that you are under no obligation to sign a release, and you should not do so until you have sought legal advice on your severance package to inform your decision on whether to accept or reject the severance package offered.
I was laid off from my job without a severance, is this legal?
Layoff – a temporary stoppage of work
Termination – a permanent stoppage of work; the employment relationship ends
At the outset, it is important to distinguish between two different legal concepts:
A layoff typically occurs where an organization experiences decreasing revenues or staffing needs. Your employer may place you on a temporary layoff to be recalled back to work at some point in the future. Alberta’s Employment Standards Code sets out minimum requirements that employers must follow with respect to temporary layoffs (see our post about COVID-19 related layoffs here).
Is an employer obligated to provide pay in lieu of notice (i.e. severance), if it places you on temporary layoff? Generally speaking, no.
However, if the layoff extends past the maximum duration permitted by the Employment Standards Code, your employment will be deemed to have terminated and you will be entitled to pay in lieu of notice. In some circumstances, a temporary layoff can constitute a constructive dismissal entitling an employee to pay in lieu of notice—but this will depend on a variety of factors.
A termination occurs where an organization wishes to permanently end an employment relationship. If your employer terminates your employment, it is likely obligated to provide advance notice of the termination or pay in lieu of notice (i.e. severance). Your employer may not be obligated to provide pay in lieu of notice if it terminates your employment after less than 90 days, or if it has “just cause”. Otherwise, most employees will be entitled to some amount of advance notice or pay in lieu of notice.
The amount of pay in lieu of notice you should receive will depend on a variety of factors including:
- The minimum requirements in the Employment Standards Code;
- The common law—which considers your age, length of service, character of employment (i.e. your role), and the availability of similar employment; and
- Any contract or agreement with your employer.
If your employment has been terminated and your employer has not provided any severance, your employer has probably not fulfilled its legal obligations to you.
We can help you determine how much severance you may be entitled to, along with your best option for pursuing a severance claim. We may recommend sending a demand letter, filing a complaint with the Employment Standards Office, or commencing a lawsuit. We want to help you find the best, most efficient option for recovery.
If you would like more information about temporary layoffs or terminations, or if you would like to discuss any other employment matters, please contact a member of the Carbert Waite Employment Law Group.
I’m a salaried employee, am I still entitled to overtime?
Overtime eligibility does not change based on whether your pay is salary, annual, or something else. In Alberta, the Employment Standards Code sets the minimum standard for when overtime must be paid, and who gets it; and the Employment Standards Regulations list exemptions. Managers, supervisors, and a list of specific professions and situations are listed that are not required to be paid overtime. If you receive a salary, but are not exempted by the Regulations, then you should be receiving overtime for additional hours of work. If you think you may be entitled to overtime pay, please contact any of our Employment Lawyers to discuss it further.
I’m an HR Manager and I was called about a previous employee for a reference. Am I allowed to give a negative reference?
Yes, but you may want to be cautious. To avoid creating issues where a previous employee could claim defamation, the safest option is issuing a confirmation of employment: start date, end date, title, position description, and job responsibilities. If there was no performance reason for the termination, then confirming that fact is also useful.
If performance was part of the reason for the termination, or if just cause has been asserted against the employee, then factual statements are important when making negative comments. For example, claiming that an employee stole money when that has not been proven, would be problematic. Similarly, saying that a worker wasn’t a good team player without having specific examples of issues that were addressed would not be recommended. Instead, statements like “The employee failed to meet our performance expectations” with specific details about what the goals were, would be a supportable way to issue a negative reference.
If you have questions about how to respond to a specific reference question, our Employment Lawyers can assist you.
Am I entitled to severance if I was recruited by my current employer?
The short answer is: No. The obligation for an employer to pay severance, otherwise referred to as “pay in lieu of reasonable notice”, arises from an employer’s obligation to provide reasonable notice to employees upon the employer’s termination of their contract. The principle behind this is for the employer to provide reasonable notice (or pay in lieu of that notice) that would allow an employee, terminated without cause, to find similar alternate employment. An employer is not obligated to pay severance to employees who choose to resign (regardless of whether the employee’s resignation was in pursuit of a position for which they have been recruited).
Employers who recruit employees may owe a longer termination notice period due to encouraging an employee to leave a secure position.
Carbert Waite LLP Partner and Employment Lawyer, Joseph Oppenheim, made a recent contribution to the Canadian HR Reporter. In the article titled “Failing to report incident, dishonesty in investigation provide just cause to dismiss worker” Joseph discusses an Alberta Labour Relations Board ruling where an oil sands enterprise in Alberta was determined justified in dismissing […]
On November 3, 2022, the Nova Scotia Court of Appeal released its decision in HFX Broadcasting Inc v Cochrane. Cochrane had sued her former employer, HFX Broadcasting, for constructive dismissal. Cochrane alleged that over a period of several years, she had been subjected to a litany of repeated sexual harassment by her immediate supervisor and non-sexual harassment through ostracism
The Alberta Court of Appeal established that CERB received by employees after termination must not be deducted from damages for wrongful dismissal.
Author: Kate Perala A recent arbitration between the City of Calgary and one of their employees demonstrates the challenges in navigating work place investigations and the consequences of employee’s abusing sick leave policy. The City of Calgary regularly lays off seasonal workers in the fall and recalls them in the spring to maintain the City’s […]
This blog post is an example of everything that can go wrong when an employer is unaware of their human rights obligations and they attempt to self-represent.
This blog post examines how the Canada Revenue Agency has interpreted settlement payments through their issuance of Interpretation Bulletins and Income Tax Folios.
Employers are required to make efforts when accommodating family status changes. Human Rights asks for a joint effort between both parties.
This case highlights the importance of the use of a clear language in any termination clause to avoid risk.
Employers must be cautious in agreeing to an Independent Contractor relationship with workers.
Dylan Snowdon offers his opinion on the recent decision of the Human Rights Tribunal of Alberta, where they addressed the issue of an employee dismissal during a medical disability leave.
Employment Law is ever changing. Just when we think we have a good handle on how a court will decide an issue, a court releases a decision that revises previously settled law or governments change legislation. Because of this, it is dangerous to rely on old templates for offer letters or employment contracts.
This blog provides a basic overview of three issues that employers in Alberta may face in paying their local employees in crypto.
On November 24, 2021, members of Carbert Waite’s Employment Law Group gathered for a fireside chat to discuss some of the key legislative changes, COVID-19 updates, and notable cases to emerge in 2021 as well as their impacts heading into 2022. Read on to see some of the key issues discussed.
Carbert Waite LLP is pleased to share this virtual presentation and discussion. Mandatory vaccinations, requiring a return to the office, and managing employee requests for flexible work arrangements will be covered as we discuss rights and requirements for employers seeing to return employees to work.
As vaccination eligibility opens and work from home restrictions are slowly lifted, workplaces have options when it comes to encouraging employees to get their vaccines before returning to the workplace.
Matthew Bobawasky and Eleanor Carlson have been awarded with Best Lawyers: Ones to Watch.
In June 2021 the Federal Government began accepting applications for its Vaccine Injury Support Program (VISP). This blog discusses the new program and examines its eligibility criteria and application process.
On June 7, 2021 team members from Carbert Waite’s Employment Law Group hosted a webinar on The Post-Pandemic Workplace.
Termination clauses in employment contracts are notoriously difficult for employers to draft, with courts requiring employers to be clear and unambiguous.
Employment contract termination clauses often face challenges by employees seeking to increase the payment made on termination of employment, and courts have found a variety of reasons not to enforce termination clauses.
Since the beginning of the Covid-19 pandemic, in-person termination meetings have become anywhere from inconvenient for people working predominantly from home to potentially impossible in some cases.
In order to help you understand these changes, we’ve prepared a table comparing the key amendments in Bill 47 to the previous statutory frameworks. We’ve also set out some of the impacts these amendments may have on workers and employers.
Employees are now entitled to paid leave to get their COVID-19 vaccination. We discuss what is required by employees and employers in this blog.
Employers have a new tool available to them for dealing with online harassment. But, what is legally seen as internet harassment?
On January 28, 2021 team members from Carbert Waite’s Employment Law group hosted a webinar on current employment law issues, focusing on: Top Employment Cases from 2020 Mandatory Vaccinations in the Workplace Bill 47: Ensuring Safety and Cutting Red Tape Act The webinar was moderated by Dylan Snowdon, who was joined by Matthew Bobawsky, Kevin […]
Authors: Rachel West and Mihai Beschea The Ontario Court of Appeal released Waksdale v Swegon North America Inc on June 17, 2020 (“Waksdale”). The Supreme Court of Canada recently denied leave to appeal on January 14, 2021. This means that the Ontario Court of Appeal’s decision is the final word on this matter. This is […]
Requiring proof of vaccination against COVID-19 is a step governments, employers, and businesses may be considering. Proof of vaccination compliance has been mandatory in some situations before COVID-19.
Employers often use employee incentive programs to recognize and reward good performance and retain employees. To ensure these programs have their desired effect, many employers implement policies that govern – and carefully describe – when the employee is entitled to the incentive and when they are not. More often than not, employers use these policies to limit an employee’s entitlement to a particular incentive when the employee’s employment is terminated without cause, which has produced an appreciable amount of litigation in recent years.
Bill 32: Restoring Balance in Alberta’s Workplaces Act, was introduced in the Alberta Legislature on July 7, 2020, and received Royal Assent on July 29, 2020. Bill 32 introduces a number of changes to Alberta’s Employment Standards Code and Labour Relations Code.
This blog post explains some of the changes to the Employment Standards Code and sets out how these changes will affect employers and employees.
The novel coronavirus (COVID-19) pandemic has raised questions for Alberta employers as to what the Workers’ Compensation Board–Alberta (“WCB-Alberta”) requires of them when there are cases of COVID-19 within their workforce, and how WCB-Alberta manages such cases.
For workplaces that remain open, or those considering how to resume operations, the possibility of screening employee temperature is being explored with greater frequency. With major corporations around the world announcing screening programs to both increase worker safety and consumer confidence, many others are asking if they should follow such a process.
The federal government recently launched a new Canada Emergency Wage Subsidy (“CEWS”) calculator on the Canada Revenue Agency website. This calculator is intended to help eligible employers estimate the amount of their subsidy claim in advance of applying for the CEWS.
The COVID-19 pandemic has caused significant and harsh economic challenges to businesses in Alberta. In response to these challenges, many businesses have chosen to temporarily lay-off their employees under section 62 of the Employment Standards Code.
The COVID-19 pandemic has affected Alberta’s economy and working culture. In response to this pandemic, the Alberta Government on April 6, 2020 made many legislative changes to the Employment Standards Code. Key information about these changes is discussed here.
Although the federal government is stepping in to provide employees much-needed income support through EI, Canada Emergency Response Benefit (CERB), and other benefits, employees will still be entitled to receive notice or payment-in-lieu of notice upon the termination of their employment.
The COVID-19 outbreak is forcing organizations and employees to rely on remote work arrangements. While work from home arrangements have intrinsic challenges, the current COVID-19 social-isolation measures add further difficulty, as many employees are now balancing working from home with childcare obligations or home-schooling.
We have summarized a number of options available to employers to help maximize benefits to their employees facing temporary layoff or reduced income.
In response to the outbreak of the COVID-19 virus, or novel coronavirus, both provincial and federal governments have amended workplace legislation with a goal of assisting businesses and Canadians vulnerable to layoffs and sickness. Here's what you need to know.
Alberta has confirmed seven cases of the COVID-19 virus, or novel coronavirus, as of the posting of this article. These cases, along with daily media reports from across the globe, seem to be prompting heightened fear of the virus. Alberta Health Services is posting up to date information and news releases here. Although there is no need for employers to panic, it is important for employers to be aware of their legal obligations to employees in relation to COVID-19.
It is well known that employers in Alberta, subject to certain exceptions, must give their employees a minimum amount of notice or pay in lieu of notice when terminating the employment relationship. For years Alberta employers have been required to comply with the termination provisions of the Employment Standards Code, which prescribe the minimum amount of termination notice (or pay) required, based on a given employee’s years of service. In many cases employees are entitled to greater notice of their employment termination under the common law.
The Supreme Court of Canada rules employers are not required to inspect locations where the employer does not control the work place.
On December 20, 2019 the Supreme Court of Canada rendered their decision in Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67. The appeal considered an Occupational Health and Safety Tribunal Canada order requiring an employer to inspect workplaces under section 125 of the Canada Labour Code.
Employers coming to Canada from the US, or employers with operations in both jurisdictions, need to be aware of local employment laws. While there can be some exceptions, for the most part, where the work is being performed will determine the laws applicable to a worker. There is no end to the number of differences between each jurisdiction in Canada and the US, but here we summarize the biggest issues to be aware of.
On October 2019, the Supreme Court of Canada heard an appeal in Matthews v. Ocean’s Nutrition that could have far-reaching implications for Canadian employers relating to long and short-term incentive plans, bonuses, and other forms of non-salary compensation.
As we approach the holiday season, it is important that employers reflect on what can be done to ensure their holiday party is fun, safe, and enjoyable. Employers should be aware of all safety-related liabilities that can exist and host holiday events with the prioritization of employees’ safety in mind. These tips apply year-round, but with the increased number of events this time of the year, now is a great time for a refresher.
Many changes to the Canada Labour Code came into effect September 1, 2019 that will impact federally regulated employers.
Alberta introduced Bill 2 on May 27th, 2019, repealing much of the 2017 overhaul of the Employment Standards Code and Labour Relations Code. Changes amending the Employment Standards Code will come into force on September 1st, 2019. Changes amending the Employment Standards Regulation relating to “youth minimum wage” came into force June 26th, 2019.
Allegations of sexual harassment are serious and employers should investigate them promptly. Even when no specific complaint has been made, but there has been gossip or murmurings of inappropriate behaviour, employers should probe the issue and not wait for a formal complaint.
When the difficult decision is made to terminate an employee, one of the first things employers often turn their mind to is how much notice or pay in lieu of notice they need to provide to the employee.
In the excitement of getting new business ventures off the ground, the formalities of employment relationships can be overlooked. Taking the time to implement employment contracts at the beginning can be very valuable and avoid big headaches down the road.
The Supreme Court of Newfoundland and Labrador recently upheld an arbitrator’s decision which found that the duty of an employer to accommodate an employee’s medical marijuana use does not require the employer to tolerate an unacceptable increased safety risk resulting from the possibility of impairment.
Shortly after hiring a new employee, your company might receive a Cease and Desist letter telling you that the employee you’ve hired is subject to a non-competition or non-solicitation agreement with their former employer. The letter might demand that you terminate the employee or take steps to ensure the employee does not breach their contractual obligations to the former employer.
Employers regularly provide current and former employees an employment reference. In the case of an employee who was dismissed without cause, it’s usually in the employer’s best interest to provide a positive reference so that the departing employee can quickly find replacement employment and, as a consequence, reduce the employer’s damages.
Ending someone’s employment is a serious moment in their life, and should be addressed thoughtfully and with sensitivity. Most people assign a large amount of their identity to their job.
Becoming the subject of a workplace investigation is extremely stressful, so it is important to take the time to respond to and participate in an investigation carefully and calmly.
Dismissing an employee with cause (where no notice or pay in lieu of notice is given) is rarely justified at law, particularly for conduct outside of work. However, there are circumstances where off-work behaviour can lead to a dismissal with just cause.
We have all watched the growing sexual harassment scandal roiling the American entertainment industry and causing the downfall of American political figures (with notable exceptions). Corporations and organizations across North America in numerous industries are dealing with an onslaught of credible allegations, some involving high profile employees and senior executives.
There has been considerable public attention recently on a variety of forms of agreements which limit an individual’s right to bring claims or to disclose sexual harassment.
In February 2018, Canadian Family Physician, a peer-reviewed medical journal and the official publication of the College of Family Physicians of Canada (CFPC) issued new simplified guidelines for when primary care physicians should grant a licence for medical marijuana.
On November 2, 2018 the Court of Queen’s Bench of Alberta issued a decision that may impact how many employment disputes are heard by the Court.
We are frequently asked by employers how to end the employment of employees who are part time or work irregular schedules. Most Canadian employers understand the need to provide notice of termination of employment, as set out in the employee’s contract or under the common law.
It’s that time again: time to look at what you can do to make sure your company’s holiday party is both fun and safe. These tips apply year-round, but with the increased number of social events at the end of the year, now is a good time for a refresher.
Assessing fitness to work is important in all workplaces, not just safety sensitive workplaces. Assessing fitness for work is also about more than testing employees for intoxication.
In Jonasson v. Nexen, 2018 ABQB 598, a major energy company was judged to have acted in bad faith by seeking to rely upon a deemed resignation clause in its leave of absence agreement (“LOA Agreement”). The employee was deemed to have been dismissed without cause. Wrongful dismissal and punitive damages were awarded.
In most civil cases, the outcome is not entirely predictable. Generally speaking, there are three narratives to every case: (1) the plaintiff’s narrative; (2) the defendant’s narrative; and most importantly (3) the trial judge’s narrative, formed on review of all the admitted evidence.
You were just laid off. You are shocked and overwhelmed. You know you have rights and you are unsure if you were treated fairly by your former employer but you do not know what to do next. A helpful first step is to schedule an appointment with an employment lawyer who can explain your rights and advise if you have been treated fairly.
In its recent decision in Seguin v Pearson, 2018 ONCA 355 [Seguin], the Ontario Court of Appeal has clarified the distinction between the tests for challenging testamentary gifts versus inter vivos gifts (those made while a person is still living) on the basis of undue influence.
Alberta employers considering random drug and alcohol testing in unionized and safety sensitive environments have been waiting for the Alberta Court of Appeal’s (“ABCA”) decision in Suncor Energy Inc. v Unifor Local 707A (“Suncor”).
On January 1, 2018, major changes to Alberta’s Employment Standards Code will come into force. Employers should be aware of the changes and examine policies and payroll practices to determine what updates are required.
On March 22, 2017, the federal government released its 2017 budget. The new budget includes proposed changes to the Canada Labour Code, the Employment Insurance Act, and other legislation that will affect Canadian workers and employers.
When your employment is terminated, and you are considering whether or not to accept a payment being offered in lieu of notice, there are some key elements you should think about.
In Wilson v. Atomic Energy of Canada Ltd. the Supreme Court of Canada provided a critical clarification to the “unjust dismissal” provisions in the Canada Labour Code (the “Code”). The Court ruled that the Code prohibits federally regulated businesses and organizations from dismissing most non-unionized employees without cause subject to certain exceptions.
Bonuses are typically used by businesses to incentivize employees to perform better. However, when bonuses are paid year after year, they become reasonably expected components of annual compensation. Complications arise when employers seek to exclude such bonuses from pay in lieu of notice.
Workplaces are dynamic and workplace policies must evolve. However, effectively amending a workplace policy so that it is enforceable in court is not as straightforward as one might think. Changes to company policies can affect employee rights, benefits, or entitlements.
Your employer has laid off many of your colleagues; but not you. Instead, your employer informs you that it is cutting your pay, increasing your hours, or changing your job duties. What options do you have?
This blog discusses the religious exceptions people think that could avoid vaccine mandates put in place by companies and what employers should know.
In the past few months, we have heard many stories of both large and small companies located in Alberta laying off substantial numbers of employees. In this uncertain environment, it is essential that both employees and employers alike understand the legal principles surrounding employment terminations. Failing to do so may mean that as an employer, you risk significant liability in the event any of your employees file a wrongful dismissal lawsuit.
here are various forms of mental health concerns ranging from mild depression and anxiety to severe depression and anxiety, bi-polar disorder or schizophrenia. Why is mental health in the workplace an issue?
On March 6, 2015 the Supreme Court of Canada released its reasons for judgment in Potter v. New Brunswick (Legal Aid Services Commission), 2015 SCC 10. In it, the Court clarified the law on constructive dismissal for the first time since Farber v. Royal Trust Co.,  1 S.C.R. 846.
Common law rights of employers are restricted by human rights legislation. The Alberta Human Rights Act prohibits certain discriminatory employment practices that are otherwise permitted under the general laws of contract. Because disabled persons are a protected class, businesses cannot utilize employment practices that discriminate against them.