National Post (National Edition)
Dismissals, stress leave and other questions
Last Saturday, I looked at a handful of common questions about employment law. Here is the second instalment.
Q What is the difference between termination pay, severance pay and wrongful dismissal damages? A Termination and severance pay both refer to provisions in the Employment Standards Act. In Ontario, termination pay is up to eight weeks pay and severance pay applies to employees with more than five years of service in companies with 2.5 million or more in payroll. It is an additional one week per year of service, up to 26 additional weeks. You are entitled to these whether or not you find other employment.
Wrongful dismissal damages are for much more than even termination and severance pay combined. It is the amount awarded by the court depending on your re-employability, position, age, length of service and a host of other factors. It generally ranges from 2-27 months. However, from those damages will be deducted earnings during the period of notice with termination severance pay being the minimum.
Q Can I get EI if I am fired or quit?
A Unless you are dismissed for just cause at law (i.e. serious wilful misconduct), you are entitled to EI benefits. If you resign because of a constructive dismissal, you will receive EI. Otherwise, you will not. If you have to resign your position because of health conditions, mental or physical, you will also receive EI. You must ensure that you have good medical evidence supporting this.
Q How long does an employer have to keep your job open for you if you are on medical leave?
A Indefinitely, subject to being off for such a long period that the courts deem the employment to be frustrated. Usually this will take years and the employer will have to show, from the medical evidence, that you will continue to be disabled indefinitely. Assuming the employment is not frustrated, if your job no longer exists, the employer has to provide you with something comparable on your return.
Q How long can you go on stress leave in Ontario?
A As long as it takes for you to recover. However, the stress must make you unable to perform your functions. If the stress disables you from performing your job and you are medically supported then yes, you will receive EI.
Q How long can you take a leave of absence from work?
A Unless it is a leave provided for in Employment Standards legislation, such as a maternity leave, an emergency leave or a leave related to your health which is required by human right legislation, an employer does not have to provide any leave at all.
Q Can I be fired without warning? A You can get fired for any reason at all with or without a warning, but the employer then has to pay you wrongful dismissal damages, including termination and severance pay.
Warnings occur when a company is building up a case to fire you for cause. Unless the cause is extremely serious (i.e. theft, fraud, conflict of interest etc.), warnings are required before there will be cause for termination.
Q Can an employer reduce my salary?
A If it reduces it by more than 15 per cent, it is a constructive dismissal allowing you to quit and sue as if you have been fired. If it is less or even if it is more than 15 per cent you can keep working and sue for the difference for the period of reasonable notice determined by the court.
Q How many breaks do I get in an eight-hour shift?
A An employer in Ontario has to provide a 30-minute break after five hours of work. It is slightly different in some other provinces. No other break is required and the break need not be paid. Similarly, the lunch period need not be paid.
Q If I only work a five-hour shift or less am I entitled to a break?
A No. Some employers may provide a break but they have no legal obligation to do so.
Q How far in advance must a work schedule be posted?
A There is no requirement to post a work schedule at all, but if the employee's shift changes from time to time, the employer will have great difficulty disciplining an employee for not complying with a schedule which he or she was unaware of. Of course, if the schedule changes dramatically and contrary to the terms of your employment, it could be a constructive dismissal permitting you to refuse and if necessary sue as if you had been wrongfully fired. The schedule also cannot prevent you from exercising your existing childcare or elder care needs as that would violate human rights legislation.
Q Can an employer force me to change my shift?
A Generally yes, but depending on how severe the change is, they might have to provide you reasonable notice of the change which could be many months. Without that notice, if the change sufficiently and dramatically impacts on your lifestyle, that could be a constructive dismissal allowing you to resign and sue as if you had been fired.
Similarly, an employer cannot require a change preventing you from fulfilling childcare or eldercare duties without sufficient notice to find an alternate provider.