Employment Law Show 640 Toronto – S8 E99

Episode Summary

Everything you need to know about medical leave, transferable skills after being terminated common employment law questions, and more on season 8 episode 99 of the Employment Law Show on Global News Radio 640 Toronto.

Listen below as Employment Lawyer Jon Pinkus, Partner at Samfiru Tumarkin LLP, reveals your workplace rights in Toronto and the GTA on the Employment Law Show. Jon shatters myths and misconceptions about severance pay, terminations, workplace harassment, overtime pay, wrongful dismissal, constructive dismissal, duty to accommodate, independent contractors, and more.

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Episode Notes

Due to COVID-19, my workplace has increased and despite a request for additional help, I was refused. Some product was damaged and I was terminated for cause as a result and forced to sign a release.

In this situation, the employer did not have a cause for dismissal. The employee in question job responsibilities vastly changed and the employee would be owed a lot of compensation. it is important to remember not to sign a release without speaking with an employment lawyer first.

An IT analyst was offered a six months severance package after being trained in programs that ensured his skills would not be transferable to any other IT position in another company.

When taking into account severance packages, individual circumstances are important such as the ability to find employment after termination. It is important to speak with an employment lawyer to ensure the entitlements offered properly take into consideration any unique situations.

Medical Leave – What you need to know:

How long can someone be away from work for medical leave? There is no specific length of time that an employee can be away from work. The Employment Standards Act stipulates 3 days per calendar year however there is also protection by the human rights code. The human rights code protection applies to disability and it is a fairly broad definition as it includes invisible and visible disabilities.

The disability insurer is not the arbiter of when an employee should return to work.

The employee’s doctor should be the sole determinator of when an employee is ready to return to work from their leave.

What is a frustration of contract?

Frustration of contract for the employer is when an employee can no longer return to work, it is impossible. If an employee is currently on long-term disability benefits, it is usually an indicator that the employee will not be returning to work. An employee is still entitled to severance, but only the minimum entitlements.

Does an employer have the right to ask about their employee’s medical information and diagnosis?

An employer is entitled to certain information, such as the prognosis and not the diagnosis. An employer can send a functional abilities form in order to find out what accommodation is necessary, how long the leave might be, etc.

I was laid off before my company was unionized, do I have to speak with the union now or can I speak with a labour lawyer?

If an employee was temporarily laid off and still considered to be an employee by the employer, they might now be part of the union roster and subject to union fees. It is important to ask the union if you are covered currently and if not part of the roster, the employee can seek out an employment lawyer.

What happens to an employee’s job while on medical leave? Does an employee have to give their employer updates?

An employer does have an obligation to hold that position for that employee to return too but an employee does have a duty to co-operate and regularly update their employer. A doctor’s note with some degree of detail should be sufficient.

What should someone do if their disability benefits are cut off?

Speaking with a disability lawyer as soon as possible is important as well as following the advice of your doctor particularly if they state you should not be going to work.

What should an employee do if they’re ready to return to work from medical leave?

It is important for an employee to communicate with their employer when they are ready to return as well as divulge whether or not there will be restrictions and accommodations required.

What should an employee do if their employer will not allow them to return to work from medical leave?

A refusal to allow an employee after a medical leave to return to work is considered a dismissal and could be a human rights violation. An employer is obligated to try and find any available comparable positions for the returning employee.

After a back injury and surgery, my doctor agreed to let me return to work with light duties but my employer is asking for more, and I don’t have an updated x-ray to show them why it’s not possible.

If an employee has followed the proper WSIB directions and their doctor is not co-operating, a second opinion from a doctor of your own might be necessary. While waiting for the results, taking a medical leave would be advisable.

Can my employer still terminate me if I didn’t do anything wrong?

For employees who are not unionized, an employer can terminate their employment for almost any reason. It is difficult to prevent termination from taking place.

If I am terminated, how much severance am I owed?

Severance pay is calculated based on age, position, and years of service as well as other factors. The severance pay calculator is a great tool to begin with before contacting an employment lawyer.

I was a unionized employee and feel I was terminated unfairly. Can I challenge an arbitrator’s ruling?

Unionized employees who are terminated are bound by the collective agreement which unfortunately could mean minimum entitlements in terms of severance pay. Typically, arbitration is a final and binding agreement. Appealing an arbitrator’s ruling is difficult.

I was hired as a casual worker for a large company and the number of shifts I received dramatically decreased. If my employment is terminated could I receive severance?

Part-time employees do have entitlements to severance just like full-time employees. An employee has to give clear notice if they’re resigning, it cannot be assumed.