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Ulysses101
Ulysses101, Lawyer
Category: Canada Law
Satisfied Customers: 3453
Experience:  11 years experience in Canada family law, plus criminal, civil, and employment
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Do you handle Canadian labor law

Customer Question

Do you handle Canadian labor law
Submitted: 1 year ago.
Category: Canada Law
Expert:  Ulysses101 replied 1 year ago.

Hello, thank you for the question.

I won't know until you ask. And you're on a subscription, so there's no harm in asking.

What's the issue? Please don't use details which can identify you, the union, or the employer.

Customer: replied 1 year ago.
Employee terminated without cause 24 hrs after staff meeting where he asked questions about after hours staff meeting pay. They have given him a check for hrs worked and included in that check 2 week pay in leiu of notice. They have given him additional paperwork to sign and he he does so by Wednesday they will give him another check for 2500 called without prejudice severance offer. Does he have a case for wrongful termination? Should he decline signing additional paperwork?
Customer: replied 1 year ago.
Are you there?
Expert:  Ulysses101 replied 1 year ago.

I'm here, sorry. I'm up and down from my computer. Although the site looks like a messenger or chat, I'm not a site employee and not in front of my computer full time. When I don't reply right away, please be patient.

Are you the employee?

Is this a unionized workplace?

How long was the employee working there, and what was the approximate salary?

Customer: replied 1 year ago.
The terminated employee is my brother in law. He started in August 2013. Not sure if Union? Auto dealership in Calgary Alberta. Approx 80000
Expert:  Ulysses101 replied 1 year ago.

Is he a mechanic? Sales?

Customer: replied 1 year ago.
Mechanic
Expert:  Ulysses101 replied 1 year ago.

Is he on salary?

Is he "management"?

Customer: replied 1 year ago.
He gets a base pay with incentives built in. Not part of management
Expert:  Ulysses101 replied 1 year ago.

OK, let's assume that he's not part of a union. Those jobs usually aren't, and if he were in a union I doubt that his termination would have been handled this way. If he does belong to a union, he needs to speak to his union steward right away, as they'll provide him with advice and also grieve the dismissal if it believes that the termination might be wrongful.

I know he's your brother in law, but there's very likely more to the story. If he was doing good work, they wouldn't terminate him for cause just because he was asking some questions. Termination for cause means "fired", for being late all the time or drunk on the job or fighting with co-workers or stealing or something like that. It's not a "lay off".

Is there more that you're not telling me? Or perhaps he doesn't want to admit to you what happened? What's the "cause"?

Customer: replied 1 year ago.
His letter states termination without cause
Customer: replied 1 year ago.
Also being very pushy to have him sign dicuments
Customer: replied 1 year ago.
He just received a letter from employer 6 weeks earlier commending his work and they recently hired a new technician based in his reference alone
Expert:  Ulysses101 replied 1 year ago.

OK, so if it's "without cause" then it's a layoff. He's been given 2 weeks, which is the statutory minimum. The courts frequently order more pay in lieu of notice than the minimum of course, depending on the circumstances of the termination, the job market, how long the employee was there, etc..

He's been offered an additional $2500 as an incentive to sign a waiver, saying that he won't sue them for the dismissal. That's pretty common.

It's also common for the employer to give the employee a very tight deadline to sign the waiver, so that there's little time to consult with a lawyer.

His salary is about $1500 per week, so the offer is essentially another week and a half of pay in lieu of notice. If the money is in exchange for the waiver then it shouldn't be considered employment income, but it might be employment income. I can't tell which, and the only difference is whether it's considered taxable and if so then that's a further delay of a couple of weeks before he can get EI.

So let's call it 4 weeks pay in lieu of notice, after 2 1/2 years of employment. That's not the worst offer I've ever seen, but it's not great either. I'd consider that the minimum he could expect from a judge. Not that this has to go to court, but if he gets a lawyer to write a letter to the employer telling them to go pound salt and to offer more or else they all go to court, I'm sure that the employer would raise their offer.

As a further incentive to stay out of court, the employer has already paid the first two weeks of the severance, so going to court is going to be over how many further weeks. It might be 2 more, it might be 6 more. But with fewer dollars at stake, people are less likely to want to hire a lawyer over it.

So I think he's due more. But it's up to him. He should contact the employer and tell them that a deadline of Wednesday isn't going to work for him as he has to get legal advice, and that his lawyer will reply to them in short order. He needs to make an appointment very soon with a civil/employment lawyer. It's not a "labour law" question, that's the law concerning labour unions.

Or he can sign the form and take the money, especially if he can get another similar job in short order and also get a good reference letter from the employer.

Does that make sense? Please reply with question or comment. If I've answered you then I'd appreciate a positive service rating please.

Customer: replied 1 year ago.
All makes sense. Can he cash the check that has 2 weeks termination and his owed pay without him signing away his rights?
Customer: replied 1 year ago.
They have a second check pending his signing of the documents.
Expert:  Ulysses101 replied 1 year ago.

That's a good question.

If he cashes the first cheque for two weeks, there could be a presumption that he's accepting that to be all he's due. That would be a strange argument to make in such circumstances, but unless he's going to sign the waiver then I recommend that he not cash the first check. Just to be safe.

He really needs to see an employment lawyer right away for a quick consult and to show the lawyer the papers he's been given. That consult shouldn't cost him much, really.

Anything else?

Customer: replied 1 year ago.
I will have him request a check for hrs worked only. Thx for all your help
Expert:  Ulysses101 replied 1 year ago.

Yeah, that's smart. His hours worked are due to him regardless.

You're very welcome, my pleasure to help. May I have a rating now please? That's how I get credit from the site for helping you today.

Expert:  Ulysses101 replied 1 year ago.

Or if there's more to discuss, that's fine too. I'm here.

Expert:  Ulysses101 replied 1 year ago.

Has your brother in law got to see a lawyer yet

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