Navigating workplace challenges
QUESTION: After five years of employment, last week my boss finally pushed me too far. For no apparent reason, he refused to allow me to take an extra vacation day on Thanksgiving weekend. It seemed like he was being petty to me and I told him I quit and went home. The next morning after I had cooled down I sent him an email telling him I didn’t really mean it and wanted to return to work. He said don’t bother. Now it looks like I get no severance and no Employment Insurance. Am I out of luck? ANSWER: Not necessarily. There are many cases in which the courts have held that either a “you’re fired” or a “I quit” uttered in a heated moment and quickly retracted is a nullity. Neither party can rely on it.
Imagine the situation had been reversed and the boss had fired you and then retracted it the next morning. You refused to return and sued for a termination package. He would no doubt argue, possibly successfully, that you could not rely on that termination and in any case should have returned to lessen your damages.
The reverse is also true. Your situation might have been a bit more difficult if the boss immediately sent you a letter indicating that your resignation was accepted or you waited a week to retract the resignation. The court will look at the entire situation and relationship to determine whether the boss had the right to take you seriously and rely upon you resignation. QUESTION: I am trying to return to work from a disability leave. I gave the employer a gradual return to work program provided by my doctor. They are telling me that I have to go and see their own doctor so they can get their own report. The release the doctor sent me does not limit what the company doctor can tell the employer about my personal medical situation. Do I have to sign it? ANSWER: No. The Ontario Human Rights Code has been interpreted to hold that except in the rarest of situations, the employer has no right to your diagnosis. They have a right to know whether or not you are medically fit to return to work any prediction as to when you might return and any accommodations required. The fact that the employer is paying this doctor directly does not change that law. Simply write on the form they are asking you to sign that your release is limited to your fitness to return to work, prognosis for return and any accommodation required. When you meet with the company doctor make sure she acknowledges what you put on the release. QUESTION: I have been a salaried sales representative with my company for four years. Yesterday I got a letter telling me that as of the end of December, (Three months from now), I am going on straight commission with a whole new compensation plan. Do I have any rights here? ANSWER: Unfortunately, not really. This could be a significant change to the terms of your employment if it has the effect of reducing your income in a big way. Employers can make significant changes as long as they give you reasonable notice of that change based on your age, seniority and level of responsibility. That means the employer could have said to you “three months from now, you’re finished” and there’s not anything more you could claim from the employer. You do not get pay in lieu of notice because you got the appropriate advanced notice.
By the same token, the employer can say “three months from now, I am cutting your wage in half ” and you end up in the same situation. You’ve gotten reasonable notice of that significant change. You cannot claim you have been constructively dismissed.If you think this is going to drastically cut your income, you should use the next three months to aggressively look for employment elsewhere.
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. Email him at ecanning@rossmcbride.com For more employment law information; hamiltonemploymentlaw.com