I was fired after disclosing a family illness

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THE QUESTION

I was let go from my job one month after disclosing that my father was diagnosed with stage 4 cancer. I noted that I would be temporarily moving provinces to support him, but because my job is fully remote, I didn’t expect it to affect my work. I’ve worked for the company for five years. However, for four of those years, I billed as an independent contractor. They offered me one month of severance. I just signed the paperwork because I was too busy and preoccupied with the move and supporting my dad. But now I finally have time to sit down and look into it and I believe my severance has been underpaid. Given the circumstances, is there any way I can go back to claim more severance?

THE FIRST ANSWER

Preet Khabra, associate, Taylor Janis Workplace Law, Vancouver

You may have more than one potential claim, although pursuing them could be challenging.

First, the four years you worked as an “independent contractor” may not necessarily be treated as contractor service. Courts look at the reality of the relationship, including the company’s control over your work, your opportunity for profit or loss and your economic dependence on the company. If the relationship was more akin to employment, those years may count toward your length of service and increase your severance entitlement.

Second, there may be concerns about family status discrimination. Rules vary by province, but under the BC Human Rights Code, family status is protected. To establish discrimination, you would generally need to show that you experienced an adverse employment impact and that your caregiving responsibilities were a factor.

The timing of your dismissal raises questions. You disclosed that your father had Stage 4 cancer and that you planned to relocate temporarily to support him while continuing to work remotely. Although timing alone does not prove discrimination, being dismissed shortly after that disclosure could support an argument that the events were connected.

However, the severance agreement you signed is an obstacle. Courts and the BC Human Rights Tribunal generally enforce settlement agreements and releases. They may scrutinize a release where an employee did not obtain legal advice, was under significant emotional stress or lacked a full understanding of their rights. The circumstances surrounding your father’s illness and relocation may therefore be relevant.

THE SECOND ANSWER

Jonquille Pak, founder, JPAK Employment Lawyers, Toronto

If your employer let you go, in whole or in part, because you needed to work remotely from another province to temporarily support your ailing father, this could breach human rights legislation. Provincial and federal human rights laws generally require an employer to accommodate an employee’s caregiving obligations toward an ailing parent, up to undue hardship. Because your job was already fully remote, accommodating a temporary relocation likely would not have caused hardship. You may therefore have human rights remedies for lost income and injury to dignity, separate from severance.

It also appears you were short-changed on severance if you worked for the company for five years. If you were, in substance, an employee (not a contractor) throughout, minimum statutory entitlements are calculated on your full length of service, regardless of how the relationship was labelled or how you were paid. One month of severance likely falls short of entitlements built on five years of service.

The key issue is whether you foreclosed these claims by signing paperwork. A full and final release, signed with adequate time to consider it, can bar further claims. However, a release is invalid if the amount provided is equal to or less than your minimum statutory entitlements. If one month falls short of what five years would require, the release may be void for lack of consideration. This turns on whether you were truly an employee throughout, your length of service and your statutory minimums. If you can overcome the release, you may have a viable claim for more compensation.

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