I'm Lior Samfiru, Canadian employment lawyer and television and radio host. AMA!

First of all, I would like to say thank you for taking the time to answer questions on this platform!

On Sunday the 14, I was asked by my local health unit to self isolate due to breathing problems I had called Telehealth ontario about.

For what ever reason I was unable to contact my employer Between the 15 and the 17th. even though I had Called 15 times and left 2 voicemails.

I made contact on the 18th at 8AM explaining the situation (breaking self isolation to do so).

I received an email Friday the 20th Indicating dismissal for "abandonment" (No phone call at all whatsoever)

In the Termination letter, it showed my Benefits were terminated on the 18th and that I would not be receiving any payment aside from Vacation left over from 2019.

IM not sure what to do from here, any suggestions?

This is both a wrongful dismissal and a breach of the Employment Standards Act. As simple as that. You have to get legal advice, and you have to do it now.

I was doing some homework on this topic- I was kind of hoping you were going to confirm my suspicions. In this case- should i be contacting Employment Standards or should I be seeking Legal Prior?

You cannot contact employment standards. Under no circumstances. You would be giving up 80% of your entitlements if you do. You have to speak with an employment lawyer.

Hello Lior, my employer offered me 10 weeks pay to leave a company I've been with for 8 years. Because I refused, my employer is now giving me work I cannot physically do due to an injury while at work, would this be considered constructive? Also, if I claim constructive dismissal, how long roughly do I have before I have to leave the company? Thanks.

This certainly sounds like a constructive dismissal. It also may well be a human rights violation. If youc ontinue in this role for long, you may be deemed to have accepted it. Only a few weeks. It is essential that you seek legal advice ASAP

Thanks for the reply. I have one more follow up, if I may: My employer will only have things written out when it benefits him or his company, when I told my employer he was in violation of my human rights I recorded the conversation on my phone. Are audio recordings in Ontario okay in this scenario?

Thanks again. You and your team are great!

You are able to legally record a conversation that you are a part of. You are not legally able to record conversation in which you do not participate. In your case, it is fine and can be quite helpful.

What color is your toothbrush?

Teal

Hi Lior! Love the usual show on 640. Question: my partner is feeling increasingly uncomfortable at work due to people being idiots and treating this pandemic likes it nothing. She works at an ice cream shop so it's classified as essential. If she decided to not work due to her fear and anxiety, would she qualify for the rebates coming up? I figured she would not be as she left vs termination/temp layoff. Unsurprisingly, they're busier than usual...

She needs to let her employer know, in writing, what her concernsare and ask for her employer to immediately take actions to ensure that the workplace is safe. If her employer doesn't fix the problem, she has 3 options:

1. She can engage in a formal work refusal, which will require her employer to bring in the Ministry of Labour to determine if the work is safe
2. She can treat the employer's failure to act as a constructive dismissal
3. She can speak to her doctor and if the doctor feels that she shouldn't work, she needs to get a sick note. That would also allow her to qualify for EI sickness benefits.

Perfect, thank you! Unfortunately, the owners are doing some things but won't budge on the extra measures to limit exposure (limiting people, forcing them to order and not touch any products in freezers (because they all help themselves). I will let her know.

Thanks for all of your help and information! It's been informative over the years and I hope to never need your services!

You are very welcome. Stay safe

Hi Lior! Thanks for doing this. I am employed in Ontario, on salary plus commission. I was laid off due to Coronavirus but my ROE states "Leave Of Absence". What are the implications?

Thank you for the question. That is not appropriate to put in your ROE since it suggests that you left on your own initiative. It may make it difficult to get EI. You should g et your employer to change that to Code "A" - Shortage of Work. You also may have the right to treat the layoff as a termination and pursue severance

Thank you very much. I will pursue getting this changed. I'm worried that by asking for this change I might be seen as "rocking the boat". I hope to return to work once this is over, but have concerns this may be leading to a dismissal if this pandemic has effected business too much. I am not the only employee laid off and will contact others to ask what their ROE states.

Keep in m ind that, as I had said to others, you do have a right to treat this as a termination now and pursue severance (regardlessof the company's intentions). That is your decision. As far as changing the ROE, that should be easy to do and should not upset anyone at the company.

I'm in the construction industry, and we habitually have "shortages of work". Are all salary employees allowed to treat a shortage-of-work-layoff, and treat it as a termination and seek severance?

In most cases, the answer is yes. That said, if you've been laid off temporarily before by this employer, then you are considered to have accept it and you may not be able to pursue a termination. Usually, you can only do that with the first temprary layoff.

Lior Samfiru here. Employment lawyer and TV and radio host. At your service

Hi Lior, I have been given a letter saying that I am not to return to work next week because there is a shortage of work. They will be issuing me an ROE identifying shortage of work and then they tell me how to go about getting EI. I am in the higher age Group 65 to 70. Should I consider this a full out termination and get severance ? I have been working there 12 years in an administrative position? love all your shows thank you!!

You have the option to cosnider this as a termination and pursue severance. Depending on your job, you could be owed anywhere from 12 - 16 months pay. You have to decide what is better, to get severance and not be employed there, or to maintain your employment status

Hello Lior,

I'm a student who recently signed my contract to intern for an aerospace company

3 weeks later, due to the pandemic, I'm told that they're cancelling my and all of the other students' internships Myself and a lot of other students rely on this kind of income to keep us going -What rights do I have given this situation? Do I get access to any governmental funds?

Thanks

Unless you've earned $5,000 in income over the last year (or in 2019) then you would not qualify unfortunately. This is a big "miss" on the government's part. They are aware of this and my hope is that something will be done to help people in your situation.

Hi Lior

My wife is currently working from home and caring for our toddler at the same time due to the daycare closures. I am unable to work from home due to my job role.

we are having a second baby in july and she had initially planned to take some paid vacation leave beginning early in june and then just roll that into her maternity leave and EI benefits. If she were to take unpaid leave to care for our toddler and receive any of the government stimulus packages, would that affect her EI benefit during her maternity leave? she has been continuously employed at this company for ~3years. thanks! edit: we are in ontario

The way things stand right now, yes, it could absolutely impact her maternity benefits since she would not have had enough hours worked before her leave. This is a very common question and I have to believe that the government will allow exceptions in your wife's situation, but that has not yet been announced.

Hi Lior!

Thank you so much for taking the time to answer all these questions!

I was terminated for “engaging in conversation with a disgruntled employee” earlier this month. The employee in question was my direct manager who had given notice earlier that week and was still scheduled to work for three weeks. We went out for lunch after I was informed about her leaving the company (by upper management). I was led to believe that she was leaving the company on good terms and I was not advised that she was disgruntled in any way. She was asked to leave earlier than her three weeks and I was terminated the following morning.

My ROE states “dismissal” and I’m unsure if I will qualify for EI. If I do not qualify, would it be worth to fight for unjust dismissal?

I was also asked to log my overtime to take time off in lieu. However, I did not have time to take the time off before I was terminated and I was it paid my overtime. When I reached out, I was told my sick day pay covered my overtime. This was never discussed prior, and I’m unsure if it is worth filing a claim for unpaid wages?

Thank you again!

The real issue here is not EI. The issue is severance. You are owed severance, if what you've described here is accurate. The best way to dealw ith this is through a wrongful dismissal claim, which would also get you unpaid wages and a new ROE.

Hi Lior,

I have a friend who will be graduating from law school this May (in the US) and wants to pursue employment law. I know many companies are doing hiring freezes right now, so they are concerned about getting a job right now. In your opinion how do you think someone could get into this profession during such a volatile time in the world? Do you have any suggestions to better their chances of finding a job?

Absolutely no one will be hiring until this is all over. No chance. That said, things can change quickly when this is all over, especially for employment lawyers. My hope is that my firm will add at least a couple of lawyers before the end of the year.

So what do you suggest someone who is fresh out of law school do for money / experience while they wait?

Find probono work, to get experience. Or legal aid work.

Hi Lior,

As a small business owner who operated at a net loss last year would I qualify for the CERB? Its a small partnership, and I made over 5000, but on paper for tax purposes I made a negative income as we reinvested money into the business.

Thank you!

If you are not making any income, then yes, you should qualify. Keep in mind that there is still a lot of questions to be answered about the CERB. The Regulations to the law still have to be published and that will tell us a lot more, so the answer may change. You will certainly be able to get the benefit. The real question is whether, down the road, CRA will try to claw it back.

how do you feel about robert herjavec?

I wish I had his hair

even though hes laid off about 40% of his workforce?

I don't know what the condition of his business is. That said, his employees have the same rights as all others, including potetially the right to treat the layoff as a termination.

Hi Lior, my employer laid off 80% of the workforce due to shortage of work. It's a private company in Ontario with about 50 employees. This happened before the government offered to subsidize 75% of wages.

Is there a requirement for the company to consider this subsidy offered by the government now that it has been announced? What if a company chooses not to simply because they can't be bothered (easier to lay people off)? Is there anything that can be done to convince them to consider it?

No the company does not have to take advantage of this subsidy. Remember, you have the right to treat this as a constructive dismissal and get severance. If someone decides to pursue a constructive dismissal, you'll see how fast the comany tries to take advantage of the subsidy.

Good Afternoon Mr. Samfiru,

I’m not sure if my questions fit directly in your line of work, but I figured you may be a good resource.

My father was born in Canada in 1944 and moved to the US when he was 6 and became a US citizen. I have done some research and found that Canada has some laws regarding my situation where I may be considered a Canadian citizen as well.

Do you know much about my circumstance? Any idea if I would be able to work in Canada without the need for a work permit or VISA?

Thank you!

You need to set up a consultation with a Canadian immigration lawyer

Hello, thank you for sharing your expertise. I called in sick on Mar 17. The 18th and 19th were my regular days off and i didn't feel it was appropriate to return to work sick during a pandemic. I called my Dr on the 19th, who said in no uncertain terms I needed to self isolate for two weeks from the onset of my symptoms. I informed my boss, who is very young and just recently became the sole owner of the business. The code required for my ROE was sent to the old owners address where they no longer live. Now my boss is trying to phone EI to sort it out but of course is unable to get through. With no ROE my EI claim cannot be processed. I'm back to work at reduced hours, 4 hours a day from 7 and 3 days a week instead of 4. I highly doubt her business will survive this situation. Is there anything I can do to get my EI processed?

Just have them issue a new ROE

Thank you for your reply. They haven't be able to issue an ROE because apparently they need this code that only comes in the mail? This is what I've been told.

I understand. You should apply for the CERB while this gets sorted out, as it could take a while with the backlog

Hi Lior, I’m a junior lawyer and have a question that I can’t seem to figure out. If I have a client who had a case of constructive dismissal immediately prior to COVID-19, and was about to quit, but then was temporarily laid off, can she still “quit” and pursue constructive dismissal? Thanks and greatly appreciated!

Yes. Either the constructive dismissal happened earlier (in which case income he earned afterwards is mitigation income) or it happened as a result of the layoff. You have to pick one triggering event.

Albertan here, what do you think about the concept of temporary frustration that would suspend rent payments in commercial leases?

Sorry, don't know anything about that.

Hi Lior

I was a student over the year and made at least $5000. Will I be eligible for CERB? I have not lost work that I had because of covid but I have had interviews and potential positions moved or cancelled, but will I still be eligible?

The main criteria for qualifying is that the person would have lost a job as a result of the virus. Based on what you've said, it does not appear that you would qualify

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Yes, you can apply for the benefit as long as you have earned at least $5,000 in the last year.

Hi Lior, My employer has given us the option of doing 2 weeks unpaid (furlough) or reducing our work week (taking 10 days of no pay over the course of 5 weeks). It looks like I would be eligible for EI for one week if I did the 2 week furlough, is this the best course of action then? Thanks!

Yes, that would be the better of the 2 options

I forgot to ask you - if my ROE is dated April 17 (final pay period date) when can I apply for CERB? should I do that when the portal opens up or April 17?

The ROE is not really relevant for the CERB. You have had to be without icome for 14 days in order to apply.

Hi! I am currently self-employed with UBER. The app will continue to let me drive, however, I am not sure if this is really the safest/most responsible thing to do. I currently have no symptoms but driving strangers around in an enclosed car seems like it could put me at risk. Is there a chance I may qualify for relief or am I better off continuing to drive for UBER to make ends meet? Thanks!

You should qualify for CERB if you do not have any income for 14 days and if you've earned $5,000 in the last year.

Thanks for the fast reply! Im sorry if this is a silly question, but made $5000 as of january 2020? or $5000 in the last 365 days?

either in 2019 or over the last 12 months

OK and I did subcontractor work in 2019 that would bring me over the $5000, can I combine that with UBER earnings or does it need to be UBER only? Thanks!

You can combine them

Thank you so much for this information, very cool that you are doing this! Good luck with the rest of the AMA!

It's my pleasure. Stay safe and good luck through these challenging times.

I was fired after giving two week notice of resignation but they filed it as a quit with resignation and now I’m being denied unemployment from them. What can I do to protest?

You would not qualify for EI. That said, you remployer likely has to pay you for the 2 weeks.

You mention the possibility of pursuing constructive dismissal when laid off. What are the implications of this, especially if people want to resume their job after the temporary lay off? Wouldn't pursuing this close the door completely? What type of compensation is usually awarded for this?

Also is severance available to everyone in ontario, even if they have only one or two years work experience with the employer? What is the usual amount people with this type of experience manage to get as severance?

The employee has to make a choice. Pursuing constructive dismissal means not going back to work. Yes, even short service employees get severance. To get an assessment of entitlements go to: www.SeverancePayCalculator.com

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THis certainly sounds like it could be a constructive dismisal and something your employer does not have a right to do. That said, before you get into a dispute with your employer, you should seek legl advice.

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It is very difficult to show that you had no choice but to quit. You would need your doctor's support. You can go back 2 years to claim overtime

Hi Lior,

I currently work in British Columbia and with less than 24 hours notice have had my hours reduced from 40 to 32, with written notice that they may further be reduced to 24. Obviously this is all due to the pandemic, and I enjoy my position and wish to remain. That being said, the lack of notice seems unethical at best. Do I have any recourse for this? I'm weighing the options in my head and seems like no matter what it would be a bad idea to take any action as it would either hurt my potential return by "rocking the boat" or potentially hurt the company by causing mass payouts...

​

Thanks for the AMA, very insightful!

Unfortunately, there are only 2 options to accept, or to pursue a constructive dismissal. If you choose to accept, make sure you send an email saying you are only accepting because of the pandemic and that you are not agreeing to any future reductions that are not related to the pandemic.

In Alberta, at what point will a temporary lay off for lack of work require severance to be paid??

An employee may be able to treat the layoff as a temination right away. Otherwise, it becomes a temination after 60 days.

Thanks for doing this! What do you recommend to canadian employees who have been asked by their employer to “volunteer” for a 10-25% salary reduction?

I would reccomend they say no.

Oh snap, I'm here on time for once.

​

I will be graduating with an MBA from Schulich in 19 days, do you have any advice on how to land a job in these trying times?

Get as much volunteer experience as you can. There are going to be a lot of people looking for work. Anything that you can do to make your resume stand out, will be extremely important.

Porter Airlines laid-off its full-time employees with only 3 days notice and no compensation past the 20th when they parked the planes and shut the doors.

My understanding was federally regulated employees require 30 days notice for long-term layoffs (beyond 13 weeks), with a tentative return to work of June 1st the lay-off is not considered long-term. If not recalled, at 13 weeks will employees be entitled to compensation for those 30 days?

Thanks a lot for doing this, it’s greatly appreciated.

The answer is n their collective agreement. I t is very different for unionized employees.

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Not having written contract is a very good thing for a wrongful dismissal claim. What I don't know is whether you should have filed in small claims or regular court. You should also not represent yourself. You will not be bale to get everything you are owed.

Hi Lior, I live in Montreal Quebec and was laid off with a package last year... I have been unable to find work and when I tried to request unemployment they said that I didn't work the amount of hours necessary in the previous year. I asked for a revision of the case and never received an answer. Now, I am basically still unable to find work, am not eligible for standard unemployment and will also not be eligible for the emergency 2000$ a month due to the corona virus... What other options do I have?

Unfortunately, there would be no options, as you do not qualify for any of the current benefits.

Hi Lior,

I work at an equipment dealer and make a very small base salary with a comission that is tied to gross margins. As I understand it my comission is not EI insurable. If I were not laid off and my comission drops significantly I will not be able to pay bills. Do I qualify for any kind of assistance in this case?

Your commissions are considered earnings for the puropse of EI

Hi Lior,

My wife just returned to work after a 12 month maternity leave. She works in the healthcare setting as a physiotherapist. I work as an ER physician, and have a constantly changing schedule.

In the setting of COVID our daycare has closed its doors and we find ourselves without easily available childcare. In our minds, the simplest solution would be to take her extended mat leave (full 18 months), unpayed, while this crisis plays out. Her HR department, boss, and union rep state that she cannot simply extend her mat leave without 4 weeks notice.

Question: Is this in fact the case by law? What conditions need to be satisfied to extended a mat leave from 12 to 18 months.

Thank-you for your time.

Technically she is required to give notice, but they can't do much to her if she doesn't. That said, my concern is that if her union is not supporting her, if the employer does something, she won't have recourse. She must get her union on her side.

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I can't speak for California, but in Ontario a worker can engage in a formal work refusal which would require the Ministry of Labour to get called in to determine if the work is safe.

How are you managing your own staff and lawyers through this? What do you wish you had done before March to keep your law practice more remote?

We are all working remotely and have had very little interruption. We have great systems and there is nothing I wish I would have done.

I’m a full commission based employee that’s still working (from home now) and will be incredibly unlikely to make any commission over the next 2-4 months. Would I be approved for CERB? Or what other options could I look at

You can qualify if you have 14 days with no income and if you've earned $5,000 in the last year.

Hi Lior, thanks for doing this!

In March my partner accepted a new position across the country and we are now in the process of moving.

I left my job to pursue this but will have to quarantine for 2 weeks after arriving, and I am unsure if I will be able to find work due to covid-19. Am I eligible for the CERB or any other benefits as I left my position willingly?

Unfortunately not, although I think there is a reasonable chance that the government will change this, since this issue has come up a lot.

Hi Lior, really good to see you on Reddit. Lior I worked part time in a small business establishment. Untill last year 2019 August 15, I was on salary and then I took time off for 4 months to upgrade and then I start work In January 2020 part time again for 30 hours every two week until March 15, 2020 and then I got laid off because shortage of work. Am I eligible any of the government benefits like EI or CERB?

Yes, you would qualify for the CERB, assuming that you have earned at least $5,000 over the last year. You should be able to apply April 6.

Thank you so much. Would I be need of ROE from employer to apply CERB??

Nope.

Would I be getting CERB benefits start from back date March 16,2020 or the date From I am going to apply ??

The date on which you apply

To qualify for CERB, $5000 has to be gross income or net income after deduction taxes ,CPP and EI ??

Gross income

Hey Lior. I changed jobs in February and went on LOA at my old job. My new job does deal a bit with the public and has said they could discuss options going forward with employment due to covid. My live in partners family is a bit at risk although we don't see them I am concerned about bringing covid home.

I'm wondering what options I have considering I've been working this new job 4 weeks and most of the last 52 weeks were at this place I'm LOA. I don't think they will shutdown so I would have to quit. If I went into self quarantine is there any benefits I could apply for if my ROE says quit? I don't have symptoms but I do want to do my part to fight covid but I got bills to pay as well.

Unfortunately, the only option I can see is if your doctor feels that you should be off work and provides you with a note, the you can take time off and also potentially get EI sickness benefits. But, that will depend on what your doctor feels/says.

What are the implications of covid benefits (ei and/or cerb) for university students that are graduating this year? From my own perspective in BC, I was working part time during school but was issued an ROE. How does being a student factor into the various benefits available? Thank you in advance!

Ultimately, to get the benefit, a person would have had to lose their job as a result of the virus

Hi Lior,

Thank you for doing this. I am a teacher in BC. I will be quitting my job soon, I think. Last year I ended up with a class that was 95% kids with major learning needs. The one kid that wasn't very low academically was gifted. I worked myself almost to death trying to help these kids. It's in a very poor area, so there was all kinds of trauma and stuff going on at home. I took it home with me and started experiencing anxiety as I was so worried about the kids. I was also on the receiving end of some bullying/harassment by three teachers. Then I found out the district had payed me the wrong amount - about 13K less than I should have been payed. The human resource officials that were responsible for the mistake deleted emails to hide the fact. Apparently I am supposed to notice the mistake in 30 days or they do not have to repay me and there is legal precedent for this rule, I am told. I have been on a medical leave since October. My sick days run out soon and I plan to quit. My friends think I should sue the district. Is this a viable option? Would it be worthwhile if I won or would a settlement or award just barely cover the cost of the lawyer.

Are you unionized?

Hi Lior, I quit my job a couple of weeks ago because I got a new job, but it’s possible my new job might be in jeopardy due to the virus. Will I be able to qualify for EI in this situation?

Unfortunately not, unless the government waives the usual conditions

I have a signed offer. Anything I can do when and if they rescind?

You might be able to, absolutely, but I would have to see the doucment.

Hi Lior, thanks for providing advice in a time of uncertainty for so many.

I've applied for EI due to a shortage of work (permanently laid off due to COVID-19). My application is pending, I've just received my access code in the mail. Do I move forward with EI, or wait to apply for the CERB? Will there be a difference in the amount of assistance I receive? Will my EI application automatically roll over to CERB? Thanks again.

The government has said that if you applied for EI, you should NOT apply for the CERB at this time.

Hello Lior! I am a student who works part time at a restaurant. We still do takeouts as it is considered essential. I do not feel safe because the number of cases is rising in my area. If I quit, would I still qualify for the stimulus package?

No, unfortunately not.

Hi Lior,

How does Force Majeure work? Everybody is throwing around the term as if it's a magical incantation.

My partner (in BC) was laid off under Force Majeure from a unionized workplace. The union contract allows for this. Does minimum severance under the labour code still apply?

It would not apply in most cases but the question must be posed to the union as it is possible that under that particular collective agreement, there would be severance entitlements

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There is a lot to discuss here, and it starts with an assessment of whether the business is an "essential service". That is more than I can do on this forum. Your father should get legal advice ASAP.

Hello, thanks for the help. I run a small incorporated business that all my work billing’s run through. Essentially it’s job to job like freelance, the difference being the business maintains a rented office space and I pull monies as an individual when needed from the corporation. The business has had an awful quarter, my main client is based in South Korea who were affected early, then worked screeched to a halt here in North America. The corporation has a bit of money in its bank account that I keep as cash flow.

Do you think that either myself or my company will qualify under the CERB?

Thanks again for your time and knowledge.

Yes, I do believe you would qualify for the CERB

I have a question with the stimulus package . Will people on disability payments direct deposit who hasn't filled a tax return in a couple years , will they receive the money or not receive it ?

Unfortunately, it appears that these individuals would not qualify

I already paid you, when can you start?

The cheque bounced

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Nice to meet you too.

there's a chair in front of the mantle, if you are sitting in it then you need to be standing at the mantle not sitting in the liars chair.

Dude, get a llife or a hobby or something.