You're fired!

10 things people ask employment lawyers
November 24, 2011 By sherylsmolkin

You have a great job, but out of the blue, your employer says you are going to have to take a salary cut, or your position has been eliminated. Or you are fired after you have been on sick leave.What are your rights and what you should do next?

Koskie Minsky LLP partner Arleen Huggins counsels clients facing situations like these every day, so I asked her to put together the top 10 employment law questions she is asked and how she answers them.

Here is her list:

1. Can I be transferred without my consent?

No you can't unless you signed a contract allowing your employer to do so. An unauthorized transfer could be considered as constructive dismissal.

Nevertheless, a unilateral transfer to a comparable position (for example, a lateral transfer in the course of a restructuring) is ordinarily acceptable.

2. Can my employer cancel or modify my insurance or pension benefits?

An employer cannot cancel or significantly modify your group insurance benefits without giving you reasonable notice, unless the terms of your employment contract or the Employee Handbook states benefits can be modified or cancelled without notice. Pension benefits are more complex, as they are governed by complex pension legislation and other common law fiduciary obligations.

3. What do I do if my manager is harassing me?

Depending upon the nature of the harassment, both human rights legislation and recent health and safety amendments protect you from workplace harassment by co-workers, managers/supervisors and other specified people. You should report the harassment to your supervisor /manager in writing or, if the supervisor/manager is the harassing party, to senior management or to the HR department.

4. If I’m paid an annual salary, do I get overtime?

Whether you are paid hourly or an annual salary, you are generally entitled to overtime pay of at least one and one half times your regular rate for each hour of work in excess of 44 hours in each work week. However, there are exclusions - for example if the type of work you do is supervisory or managerial.

5. How many letters of warning can I get before I am fired?

There is no specified number of verbal or written warnings required to fire you. It will depend upon the nature of the your conduct which the employer views as "just cause." However, in most instances, just cause for termination due to poor performance must be preceded by progressive discipline.

6. Can I be fired for failing to hit my sales targets?

Yes. However, progressive discipline would ordinarily be first required as well as regard to the terms of the employment contract.

7. Can I be fired if I’m off sick for a prolonged period?

If the length of time you are can't do the essential duties of your job because you are absent due to illness is prolonged, you could be fired - but only after your employer both takes the facts in your situation into consideration and obtains sufficient medical documentation to show that you cannot return to work in the foreseeable future. In these circumstances, you would still be entitled to receive termination pay and severance pay.

8.Must my employer give me my old job when I return from maternity or parental leave?

You are entitled to be reinstated to the position you most recently held prior to the leave, if it still exists, or to a comparable position, if it does not. However, if the employer can prove that the job position legitimately no longer exists (i.e. a general downsizing for economic reasons), the entitlement to get your job back does not apply.

9. What are my legal rights if I’m fired without cause?

Subject to the terms of an employment contract, you are entitled to, at a minimum, statutory notice of termination or pay in lieu and severance pay as provided by the Employment Standards Act.

Often an employee will be entitled to common law notice in an amount which is greater than the statutory minimums, depending upon a number of factors, including his age, length of service, income and position. However, common law notice includes the statutory minimums.

10. Can I compete with my employer if I resign from my position or I am fired?

Generally, the Courts do not tend to enforce non-competition agreements unless it is in the context of the sale of a business where the seller continues to work for the buyer. However, depending upon how the agreement is worded, the Courts will more often enforce a non-solicitation agreement, whether the employee is terminated or voluntarily resigns.

In all cases, Huggins says available remedies will depend on your particular fact situation, and independent legal advice is advisable before signing a release or agreeing to a settlement. Also in a unionized environment, many of the issues discussed above like benefit changes, progressive discipline and seniority may be governed by the collective agreement.

Also read: Courts limit impact of non-compete clauses, An employment contract can help if you are fired and How to get a fair settlement if you are fired.

Sheryl Smolkin is a Toronto lawyer, writer and editor. She can be contacted through her website or you can follow her on Twitter @SherylSmolkin.