Suncor employee doesn't wish to transfer and seeks options

Mailbag offers refresher on workers' rights

The questions I receive through this column and my radio show gives me invaluable insight into the changing nature of employer-employee relationships. The pandemic has left many companies scrambling to structurally alter their business models and that has had a direct impact on their employees. In addition, mergers, bankruptcies and cost-cutting measures undertaken by firms is also compelling many companies and workers to ask questions about their rights and legal recourse.

Here is a sample of the questions I have received recently. Sometimes I answer your individual questions directly, so none are entirely ignored. Please keep them coming.

Q: I saw my letter of dismissal on the printer but have not yet been terminated. What can I do? I am shocked by this.

A: It is rather obvious that you are going to be dismissed and I would get in front of it and contact your employer, with a copy of the letter, and let them know how humiliated and devastated you felt by discovering this. I have actually had that occur in a case, made an issue of it and the employer paid more money and more quickly than it would have otherwise, because it was embarrassed by its own incompetence and by the embarrassment that this represented to it if the case became public.

Q: My company says it would reduce my pay by 10 per cent if I decide to work from home. The other option is to go the office. Can they do that?

A: It's actually a smart move on the employer's part. It's your choice if you wish to stay home and earn 10 per cent less. The employer could have selected any lesser salary that it chose, as long as you were provided the option of coming to work and maintaining your full salary.

Q: A friend was let go from work due to COVID-19 and given four months severance. The contract said if she finds a job within the four months her severance would stop.

She found a job in two weeks. If she doesn't call them, how would they ever find out she got a job. And what happens if they keep paying her, and then find out?

A: Depends on what she signed. It could be fraud. Based on the agreement, if she was warranting that she remained unemployed, she could be in great difficulty and, at the very least, could be successfully sued for the recovery of the money.

Q: I am part of Suncor Energy Inc.'s Toronto team that's being moved to Calgary, but I do not want to move. Can I be forced to transfer?

Unless there was a practice at Suncor to transfer employees at your level to other cities, at Suncor's discretion, or the employee had a contract permitting this, such a forced transfer is a constructive dismissal. Alternatively, if you refuse to transfer, it would be a wrongful dismissal. In either event, you would be entitled to likely 16 months of full compensation.

Q: Can an employer reject me for a position at reception after asking for my photograph, because I am not good-looking enough. If it's only based on a woman's looks, how is that not discrimination based on sex/ gender?

A: Employers are free to discriminate based upon good looks as that's not prohibited grounds, as gender is, under human rights legislation. They are not discriminating based upon gender, such as if they said they would only hire a female. They are discriminating between good looking and less good-looking males and females. Most discrimination is perfectly legal. Only few grounds i.e. race, creed, gender, sexual orientation, religion, etc. specified in human rights discrimination constitute illegal discrimination.

Q: What if you were to sue your company for wrongful dismissal after working there for 8-10 years. But if you exclude the company from your resume that leaves an 8-10 year hole in your career, that could effectively impact future job opportunities. Potential employers may also learn of you suing your previous employer.

How can you protect your future employment prospects from a wrongful dismissal case?

A: There is no reason not to include that employer on your resume. The days of being stigmatized for suing your employer for wrongful dismissal, particularly if it did not pay you enough on termination, is largely over. You are likely to find that a significant percentage of the management team at any new employer have, by now, been involved in just such a case. It may be different if you were fired for serious misconduct but, whether you sue or not, you will have to explain your departure.

Q: My employer has provided me six months advance notice of my dismissal.

Can I decline this working notice?

An employer has the right to provide advance written notice with a specific termination date. Such notice will offset any entitlement to wrongful dismissal damages. Only statutory severance need not be paid as working notice.

An employee has no choice but to accept it and if they do not, they have forfeited the number of months of dismissal damages which that working notice represents. Some employers provide working notice, hoping that the employee, not wishing to work off their severance, will agree to a lesser amount of dismissal damages than their entitlement, in order to be released earlier.

But many employers reject working notice because of the risks of poor morale, breach of confidentiality and even sabotage.

Q: Our company was sold and salaried employees are being moved to hourly wages, and being told they have no choice. Can they do this?

A: If there is no impact on their earnings, salary employees can be moved to hourly and vice versa. It's only a constructive dismissal if it has a significant impact on hours or remuneration.

Q: Our general manager returned to work after being exposed to COVID-19 and while waiting for his test results. His test came back positive and subsequently the office was closed as we wait for our test results. We are not able to work from home. Shouldn't we expect to be paid while we wait?

A: The general manager should obviously not have attended work while awaiting test results and should be disciplined, at least, for that. Arguably, you might have a case against her or him. Whether you have a case against the company would depend upon the terms of its disability benefit policy.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.