Can You Get Employment Insurance (EI) If You Quit?

| June 28th, 2017 | No Comments »

If an employee voluntarily leaves their employment without reason, this would result in disqualification from EI entitlements. There are certain circumstances, however, that an individual would be able to voluntarily leave their employment without forfeiting their EI eligibility. Under the Employment Insurance Act, there are numerous reasons that allow employees to ‘quit’ without forfeiting their EI eligibility. Each of these reasons is called ‘just cause’, which means that since the employee was justified under the Act in leaving their employment, EI eligibility is not forfeited.

The ‘just causes’ scenarios listed under the Act that allows individuals to retain their EI eligibility include:

  • Sexual Harassment
  • Moving with a spouse of dependent child
  • Discrimination
  • Work that endangers health or safety
  • The need to provide care to an immediate family member
  • Assurance of a job in the immediate future
  • Negative changes to your salary/wages
  • Excessive overtime or an employer refusing to pay for overtime wages
  • Major changes to work duties
  • Discrimination due to being a member of an association, organization, union, etc.
  • Pressure from an employer or employee to leave employment

If quitting is necessary and is linked to one or more of the above ‘just cause’ qualifiers, it is important to support your decision to leave employment with any information possible. It is important to establish that quitting was the only reasonable decision that could have been made given the situation.

Upon applying for EI, an agent will assess the claim of just cause. It is important to have as much information as possible, as an investigation of the employer (if necessary) and the reasons being claimed to support just cause will be evaluated.

Fired from Your Job Based on Discriminatory Ground

| May 25th, 2015 | 2 Comments »

QUESTION #3

I have been fired from my job because my employer told me I don’t fit into their culture. Is this illegal or a form of discrimination?

ANSWER 

Termination Without Cause

Terminating you because you do not “fit” the company culture can be illegal on account of discrimination, but this requires an inquiry into why you do not fit.

When an employer terminates you and gives “fit” as the reason they are terminating you without cause: you are entitled to working notice, payment in lieu of notice or some combination of the two (“notice”). This act on its own is not illegal, as an employer has the discretion to end your employment.

However, an employer is not entitled to discriminate against an employee under a prohibited ground set out in Ontario’s Human Rights Code (the “Code”), to provide notice and to hide behind “fit” as the reason. 

Ontario’s Human Rights Code and Discriminatory Ground

Code grounds include, race, disability, sex, age, gender, family status, sexual orientation, ethnic origin and other personal characteristics. So, if you suddenly do not “fit” with the company’s culture based on some discriminatory ground, you are entitled to compensation above your notice requirements and/or reinstatement.

For example, the following employees likely have a good case against their employer for discrimination:

  • The group of waitresses in their 50’s that did not “fit” were replaced by women in their 20’s
  • The salesman that had excellent sales but no longer “fit” at the car dealership after his boss found out he was homosexual
  • The long-time accountant that did not “fit” when her firm noticed she was pregnant
  • The factory worker that did not “fit” when he was diagnosed with Parkinson’s disease

Discriminatory Ground and Advice from a Lawyer 

It is important to note that even if the discriminatory ground is only part of the reason you were fired that is enough to prove discrimination.

As you are likely aware, discrimination is often concealed or subtle and can be the consequence of unspoken beliefs and biases. You would be wise to seek the help of lawyer to help you prove that your termination for “fit” was in fact a veiled discriminatory practice of the employer and to make sure you were provided with the appropriate amount of notice.

Addictions in the workplace- can I fire my alcoholic employee?

| February 18th, 2015 | 1 Comment »

The workplace environment brings a number of people together under one roof which may include employees with addictions. There are no clear cut ways of identifying someone as an alcoholic. However, there may be signs during the course of employment that allows the employer or colleague to see that something is off. Perhaps, behavior changes, absence from work or mistakes etc. Though, how does one classify an individual as an addict or a mere social drinker? Can an employer fire an alcoholic? These questions cannot be taken lightly and require legal expertise.

Employers should take the appropriate steps to safeguard their workplace. They must also abide by the legislation that protects the affected employee. One simple error can be costly. In the past, an employer was legally allowed to fire an alcohol addicted employee. However, today, the Ontario Human Rights Code protects employees who suffer from alcoholism and classifies alcoholism as a disability. The following rules outline some basic procedures to follow:

1.         Employee’s with alcohol addictions are protected under the human rights law;

2.         Individual assessment is needed, the Zero tolerance policy is rarely accepted; and

3.         Document the harms done by the employee and use written warnings.

It is important to consider that these will vary accordingly as all situations are different. To protect your best interests and follow the law accordingly, consult with one of our lawyers who can provide expert advice.

Should I tell prospective employers about my disability?

| February 9th, 2015 | No Comments »

Disability is a factor that can affect your job search efforts.  For instance, there are disabilities classified as “invisible” disabilities that are not physically noticeable, such as Asperger syndrome. People who have this do not display any symptoms. However, it is considered a high functioning form of autism which can affect a person’s ability to read body language among other factors. This can potentially affect their social abilities and further, their employment.

Readers for the Globe and Mail have taken an interest on this topic and are curious to know; do prospective employers need to know that the applicant employee has a disability? What does the legislation say? Toronto Employment lawyer, Daniel Lublin advises that during the interview process, an applicant employee does not have an obligation to disclose this information if it does not affect one’s work performance. However, there are other factors to consider.

To understand more on this topic, read Daniel Lublin’s Globe and Mail column and full article I have Asperger syndrome. Should I tell interviewers?

Is favouritism a legal element for promotion?

| July 30th, 2014 | 1 Comment »

The workplace is an environment where favouritism can build.  The real question is, is it legal to promote someone based on favouritism? The Employment Lawyers at Whitten and Lublin explain this topic in a deeper context based on Human Rights Laws.

Question:

My question is about favouritism.  If I’m passed over for a promotion and I believe the process was unfair and biased, what legal options or remedies do I have?

Answer:

Favouritism is not illegal.  A company can pick favourites and decide who to promote based on bias and not merit.  But there is one exception.  Its decision can be challenged if it was made based on illegal discrimination, such as age, race, religion, gender and disability.  If you were not promoted because your boss does not like you, there is nothing you can do.  But if that decision was made because your boss wanted a male in the role, for example, you could challenge it under human rights laws.  The key is proving the decision was linked to an illegal form of discrimination.  Although that is not always easy, if you have some evidence suggesting there was a personal bias due to a prohibited ground of discrimination, the legal onus shifts to an employer to demonstrate that its decision was not illegal.

Solutions for your employment issues

| July 10th, 2014 | No Comments »

Daniel Lublin, Employment Lawyer has recently written a couple of articles in his Globe and Mail column, where he answered a couple of readers’ questions regarding their employment issues. Here is what Daniel Lublin explains:

What can be done in case a client is threatening an employee and does the employer have an obligation to protect that employee?

  • An employer has an obligation to provide a safe workplace and to protect employees from workplace violence and harassment which includes threats from members of public. If employee’s safety is in jeopardy at work, he/she can leave the workplace and may even be entitled to damages.

What are the options in case unpaid vacation wages are not provided and employer decided to close down?

  • The employer cannot refuse to pay even if facing grim financial circumstances. Complain can be made to provincial Ministry of Labour or one can pursue in court, depending on the amount owed.

In case of a medical leave how long can my employer hold my job, and when I return can they refuse me?

  • The reinstatement after a long-term illness or disability is protected by human rights legislation; however there are two exceptions in which case the best is to consult with an expert.

What options would long term employee have in case employer decided to restructure and change employee’s responsibilities? Would he need to accept these changes?

  • The best option would be to meet with an expert to determine whether or not there are reasonable or unreasonable circumstances which would constitute constructive dismissal.

What can the Ministry of Labour do in a situation where the employer is creating a hostile work environment?

  • The ministry will only get involved to determine whether the employer has a workplace harassment policy in place in accordance with the Occupational Health and Safety Act. Employees may have recourse under the Ontario Human Rights Code if the harassment relates to a prohibited ground of discrimination or the civil courts if the conduct makes employment intolerable.

To read more of Daniel Lublin’s articles and find more information about your rights refer to the following articles: My employer isn’t protecting me, Will I get my job back after a long illness, and Our boss harasses us. What can we do?

Employee fired over an injury sets legal precedent in Ontario

| April 9th, 2014 | 1 Comment »

A 2013 ruling in Wilson v. Solis Mexican Foods Ltd sets a new precedent, paving the way for employees to pursue human rights claims in court where the financial outcome can be largely unpredictable and inconsistent – yet rewarding.

54-year-old Patricia Wilson had a desk job working at Solis Mexican Foods Inc. where her performance reviews were “satisfactory or better”. When Wilson revealed she was suffering from a bad back a team of senior employees at Solis met to discuss Wilson’s health.  They determined that it was “time to consider that [Wilson] may not be suited to [Solis]”. Wilson had subsequently seen her doctor who, on a couple of occasions, provided Solis with medical notes stating that Wilson needed time off work but could gradually return if the company granted small accommodations.  Solis refused to accept the doctor’s medical recommendations so Wilson did not return to work.

Meanwhile, Solis sold off the division that employed Wilson. The company sent her a letter stating that her role was consequently terminated.

Wilson sued Solis in the Ontario Superior Court for both wrongful dismissal and discrimination.  This was the first time in Ontario’s history where a Superior Court judge decided over a human rights complaint.  Wilson was awarded severance and non-taxable general damages for human rights violations.

Daniel Lublin and Ellen Low’s complete article Workplace game change, was published in the Lawyers Weekly March 7, 2014 issue and can be read here.

Parent’s worst fear – will I have my job back after my parental leave

| August 27th, 2012 | No Comments »

Most often, employees considering or expecting to become parents, face concerns about whether they will still have a job to return to after their parental leave is over.

Overwhelmed by new parenthood duties and the possibility of losing their job, it may be harder than you think to find all the necessary information and to know your rights in the event that it happens to you.

Toronto Employment Lawyer, Daniel Lublin talks about common situations of terminations while on parental leave in his latest article published in the Globe & Mail, Can a company terminate someone on parental leave?.

Human rights and employment standards legislation across Canada prohibits termination and adverse treatment because of an employee’s intention to become pregnant, her pregnancy, or for taking a parental leave.

An exception is that an employer can terminate an employee who is on parental leave if the reasons for the termination are unrelated to the leave.  However, employers must show that the termination was unrelated to the employee’s pregnancy or leave, and this is often not an easy task.

Regardless of the reason for a termination during parental leave, employers are required to pay severance to the employee.  However, employers are not required to provide the severance figures to an employee who is still on leave.  Some will agree to provide numbers as a courtesy if required by the employee and where the employer’s decision to terminate has already been made.

This topic is without a doubt, one of the most misunderstood and contentious issues in employment law.  To learn more about your options, refer to our related article, Maternity Leave can thwart dismissal, found on our website.

Myths and facts of the workplace

| June 13th, 2012 | No Comments »

In his latest article published in the Metro, Toronto Employment Lawyer, Daniel Lublin writes about his favourite workplace misconceptions that people tend to believe based on “word of mouth”.

Myth 1: Discrimination means unequal treatment.

Fact: It is not discrimination if you are simply treated unfairly or differently, but it is discrimination if you are treated differently due to personal characteristics, such as age, race, gender or disability.

Myth 2: An employee is entitled to overtime pay for any additional hours worked.

Fact: Overtime pay is only required for hours worked in excess of the statutory standards, which vary among provinces.

Myth 3: There is right to sick leave.

Fact: There is no statutory or legal requirement to provide employees with paid time off from work due to an illness.

Myth 4: If I work through lunch, I can leave work early.

Fact: Agreeing with your employer to “trade” a break or lunch for an early departure would be illegal, since most provincial employment standards laws require that a 30-minute lunch be taken, at least, every five hours.

The full article can be read here and other related articles can be found on our website.

 

 

Occupy Unemployment Line

| November 17th, 2011 | No Comments »

Earlier this week CBC posted an article titled, “Occupy supporter said he was fired”.   Occupy – being a global protest that aims to raise awareness on social and economic inequality.  If you’re wondering about the legality of the dismissal, read on…you might be surprised with the answer.

In this case, the employee was a barista at Sodexo, and was allegedly told via email:

You have been a wonderful contribution to the Sodexo team unfortunately due to your involvement in Occupy Calgary we do have to let you go.

Though he was present at the protest, the employee was curious as to how his employer found out.  Would it have mattered if Sodexo was misinformed?

It’s important to distinguish between what is legal and what is moral in circumstances like these.  Although Canadian employment law often affords employees the benefit of the doubt, employers still maintain the right to conduct business as they see fit, provided that they do so without discriminating.  When it comes to freedom of expression, employers can make “immoral” dismissals provided:

  • They give appropriate notice;
  • Provide pay in lieu of notice;
  • Or provide valid rationale to substantiate a dismissal for cause, which would forfeit the prior entitlements.

Picture and video phones, instant messaging, social media – it’s easier than ever for your employer to get a lead on your activity off the clock.  Does this accountability make us more responsible individuals, or bind our expressions to our employer’s discretion?