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I have to work through my severance. Is this legal?

THE QUESTION

I just got let go and I am not getting any severance (they claim it's not their policy) and instead I am "working" until the date when my job will end. I'm being told that this is my package and there are no payments after my last day. Is this legal?

THE ANSWER

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It is legal. Employees are entitled to reasonable advance notice of their termination. Reasonable advance notice is working notice, meaning that the employer can ask you to remain at work and perform your job. As long as the end date is clearly specified and your working conditions and pay remain the same, it is legal to ask you to remain at work instead of paying you to leave. However, although employers have the right to ask you to remain at work instead of giving you severance pay, many do not do it this way, choosing instead to permit you to leave and providing you with a payment in lieu of working notice. Subject to a couple exceptions, the employer has the right to choose whether or not you are given working notice or a payment in lieu.

THE QUESTION

I live and work in British Columbia and I am having a problem with my company, which is headquartered in Quebec.

A number of changes occurred to my position while I was off on maternity leave and I'm now left unsure of my rights. Which labour laws will apply to me? Since the head office is in Quebec, does Quebec law rule?

THE ANSWER

Generally, the labour laws of the province you live and work in will apply to you. If you live and work in British Columbia, then the British Columbia Employment Standards Act would apply, regardless of the location of the employer's head office. The only exception is where your employer is a federally regulated organization (the main federally regulated industries are radio, television, airlines and banking), in which case federal legislation will govern, which is enforced by a federal government tribunal.

THE QUESTION

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I signed a non-compete agreement with a company approximately 15 years ago and was not given a copy of it. I haven't signed it since and wondered if it needs to be signed on an annual basis or every two years to be valid?

THE ANSWER

A non-compete agreement is a form of a contract and unless it says otherwise, it does not need to be renewed in order to remain valid and binding. Further, the fact you were not given a copy of it does not mean you cannot be held to it either. However, keep in mind that not all non-compete agreements are upheld by the courts. In fact, most are overturned. Whether this non-compete agreement will hold up in court will be a function of how it was drafted, whether a court finds its terms reasonable and whether it is absolutely necessary for an employer to uphold.

THE QUESTION

My employer recently informed me that my pay will be reduced. Where I work, I am being paid $18.63 an hour. When I was hired, it was explained to me that because we live in a northern community, with the cost of living higher, a 30 per cent uplift is added to our base pay. Over the three years I have worked here, the uplift was increased to 40 per cent. Now, we are being told that we will lose the uplift.

My question is, is this allowed? Can my employer reduce my pay so dramatically?

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THE ANSWER

An employer can only drastically reduce your pay in a few circumstances.

If an employment contract permits it or if you are given a proper advance warning, it can be done.

Otherwise, substantially reducing a component of your overall pay without notice or your consent is known as a constructive dismissal.

In certain circumstances, you could be allowed to leave your job and sue for damages while you look for another one.

Daniel Lublin is a partner at Whitten & Lublin, Employment Lawyers, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com.

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About the Author
Globe Careers employment law expert

Daniel is a nationally recognized workplace law expert and a partner at Whitten & Lublin (www.toronto-employmentlawyer.com), where he represents both individual and corporate clients. Daniel frequently writes and appears in the media as a commentator for workplace legal issues. Since 2008, he has been named as one of Canada's top employment lawyers. More

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