Hundreds of Ontario construction workers have been able to put bonus severance cheques in the bank in recent years after consulting a specialized legal portal called the Pocket Employment Lawyer.
Employment lawyer Lior Samfiru, co-founding partner at Samfiru Tumarkin LLP, explained recently that his firm created the service, intended to be accessed by smartphone, to help workers assert employment rights they were not aware they had.
The site has seven tools offering quick overviews of key employment rights, with severance pay, constructive dismissal, human rights violations, workplace harassment and disputes over contractor/employee status the issues frequently consulted on by construction workers, Samfiru said.
“With respect to construction, I think the point has to be made that oftentimes there’s this misconception that somehow when it comes to employment law, it’s the Wild West for construction employees, that the laws somehow don’t apply or don’t apply in the same way to people in that industry,” said Samfiru.
Many employment controversies such as disputed overtime pay, vacation pay and unsafe work environments are completely covered by legislation and the only recourse available is through Ministry of Labour processes, he said. But others, such as severance pay, have substantial common-law remedies available beyond government regulations.
“There’s a misconception that people that work in construction, if they lose their job, they’re not owed severance,” said Samfiru. “That couldn’t be more false. That couldn’t be more wrong.
“I can tell you that every single day, every single week, every single year, hundreds of people in that industry lose their jobs, don’t get paid anything, and they assume that that’s just the way it is. That is so clearly incorrect…our courts over the past 160 years have established the rules and the parameters as to how to calculate severance and what someone is owed in that situation.”
Not only are construction workers and other short-term employees often owed severance pay under the common law, Samfiru said, but the payouts can be substantial.
“The reality is that short-service employees are treated disproportionately better when it comes to severance than long-service employees,” he said. “You may have worked for three months, and you could be owed three or four months’ severance. In fact, the length of the severance could be greater than the length of employment.”
The principles “absolutely” apply to construction employment, said Samfiru. Just recently, in early April, he said, he had a case where a construction worker had been employed two-and-a-half years and the employer said, “We’re going to let you go. If we need you in the future, we’re going to call you.”
“So the person actually used the Pocket Employment Lawyer and they found out they’re owed anywhere from four to six months of severance.”
As for constructive dismissal, Samfiru said construction employers are exempt from some regulations dealing with temporary layoffs under the Employment Standards Act but construction workers can still seek remedies under common law.
“An employer doesn’t have a right to put you under temporary layoff or if they do, you can choose to consider that a constructive dismissal. So again, the constructive dismissal tool is there for you,” he said.
The other tools found at Pocket Employment Lawyer offer advice on long-term disability and termination for cause. Samfiru said the tools are intended for non-union employees, with union members expected to call their union reps for orientation on their key rights.
The severance tool and calculator were created years ago but the broader Pocket Employment Lawyer portal was developed just before the pandemic.
Samfiru said it’s a response to the fact there is a “dark hole” of misconceptions about employment law across Canada, but often workers are not inclined to call a lawyer right away to seek answers because they may not be comfortable with the process and they are concerned about possible costs.
The seven sections of the Pocket Employment Lawyer offer the initial orientation and if the worker is encouraged that they may have rights they want to assert, the next step is a phone call to a lawyer, said Samfiru.
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