Sick pay not a right
2. Sick pay is a right.
It is not. An employee has a right to sick pay only if an employer has a plan providing for that benefit. That plan could provide any amount of sick pay that the employer, in its absolute discretion, decides to include, from one day’s pay to unlimited sick pay, from no salary replacement to 100%. 3. If an employer provides sick pay, it must do so if the employee provides a doctor’s note. Unfortunately, many doctors will provide notes with little scrutiny and with less expertise. Many judges have come to appreciate this. After one of my previous columns on point, one Ontario doctor wrote to say that what he stated in his medical notes was “ Mrs. X advises me she is sick. I believe her. Why don’t you?”, noting that, with the pressures of practice, diagnostic tests to prove much else are all but impossible.
If an employer doubts that an employee is genuinely ill, it can refuse to provide sick pay unless that employee sees the company physician or has a detailed medical note explaining that the employee is disabled from performing any work and that the doctor has performed a sufficient analysis to determine this. Ultimately, if sick pay is unpaid, that employee will have to sue and persuade the court that the sick pay provisions of the policy were satisfied. A doctor’s note is not dispositive. 4. Employers can suspend, with impunity, employees who misconduct themselves. As a recent Ontario case held, unless the right to suspend is established in that workplace, a suspension could be a constructive dismissal, allowing the employee to resign and sue for wrongful dismissal. 5. Employees have a right of privacy in the workplace. For example, e-mails cannot be reviewed by the employer unless consent is obtained.
The company’s phone, computers and Internet system are the employer’s property. They have an absolute right to monitor e-mail usage and discipline employees for sexual harassment, Internet porn or simply excessive personal usage during the workday. 6. Courts provide severance pay of one month per year of service. That is not even the starting point in most cases. Length of service is only one of many factors in determining wrongful dismissal damages. Reemployability, age, the treatment by the employer and the status of the position are equally important, and there are over 100 other factors the courts might look at in any given decision. The importance of length of service has been diminishing.
Financial Post
Howard A. Levitt is counsel to
Lang Michener LLP. He is author of The Law of Dismissal
in Canada and The Quick
Reference to Employment Law,
and editor- in- chief of The Dismissal and Employment Law Digest. He practises throughout
Canada. He can be reached at
hlevitt@ langmichener. ca