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Friends giving a toast. (Dmitriy Shironosov/Getty Images/iStockphoto)
Friends giving a toast. (Dmitriy Shironosov/Getty Images/iStockphoto)

Ask an Employment Lawyer

My ‘sick’ employee posted pictures of herself out partying Add to ...

I constantly encounter workplace disputes that push the boundaries of what is legal and what is fair. Whether through ignorance, intolerance, or worse, both workers and employers sometimes just get the law wrong. Here are three more questions from the Globe Careers mailbox of this column, followed by the advice I can provide:

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Fraudulent sick leave:

I have an employee who gave me a note on a Friday stating that as of Monday she will be on sick leave for the summer as she requires bed rest prior to surgery at the end of the summer. Recently she has been posting pictures of herself on Facebook out fishing and partying and she has attended company events outside of work. Can I fire this employee?

Answer: Pictures do not lie; people do. If the pictures demonstrate the employee is behaving inconsistent with her stated medical restrictions, this is dishonesty and she can be fired. However, there is a big “but.” It is a serious error to assert dishonesty without proof and if the termination is motivated, even if just a little, by her request for medical leave, then this is a form of discrimination. Therefore, if you are going to fire her because she is lying, you need to be sure.

Another approach if you are questioning the medical note is to demand better medical evidence or even have your own doctor conduct an independent assessment. If the employee can perform the essential conditions of her job, she can be compelled to remain at work until the medical evidence clearly says otherwise.

Termination during maternity leave:

About two months before my scheduled return to work from maternity leave I was informed that my job was being terminated due to some “restructuring” but they are giving my job to the person who replaced me with a different title and salary. A severance package was offered and only five days to respond. Is this legal?

Answer:

Employers are not allowed to terminate workers on maternity leave but there is an exception. Where a worker’s job no longer exists or where the reason for termination is entirely unrelated to the maternity leave, then reinstatement may not be necessary.

Unfortunately, the “exception” to mandatory reinstatement is sometimes treated as a loophole by employers who make it seem like a restructuring occurred in order to avoid the reinstatement.

The key in these cases is to look at the surrounding circumstances to determine if the job really does not exist – instead of simply taking the employer’s word for it. The fact that the replacement is being offered a different title and salary may suggest that her new job is not exactly the same but titles can be deceiving. The real question is whether or not the replacement or other workers are continuing to perform the fired employee’s essential duties and whether any comparable jobs are available.

The situation is compounded by the requirement to agree to a severance package within five days’ time, likely under the threat of it not being available if goes unsigned. Once the employee takes the severance offered and signs a release, she cannot later claim discrimination and sue. Despite this threat, if there is a chance that the employer did not exactly comply with the law, then it makes sense to challenge the situation as illegal, since it is the employer’s onus to demonstrate that it was not.

In these cases, the employee could receive a greater severance package or general damages for discrimination. In some instances, labour or human rights tribunals will even consider reinstatement.

Changes to compensation:

My company has told me that my compensation will change from a base salary plus bonus to a “variable plan” that will consist almost entirely of a sales commission with a small recoverable monthly draw. They have positioned this as giving me a better opportunity to earn more money in commissions but that assumes that I can sell more products. I fear that when all is said and done, I will come out with about 25 per cent less money than before. Is there any recourse to recover the difference?

Answer:

This is a classic constructive dismissal. An employer does not have the right to change an employee’s compensation (or any other important term of the job) in any negative way. As long as that change is not minor or insignificant and it is adverse to the employee, he or she can refuse to accept it and has a right to leave if the employer persists in imposing it. Where an employee leaves work in these circumstances, it is not a resignation but rather is considered a constructive dismissal, which means that the employee is entitled to damages for lost compensation while looking for another comparable job.

How does a court determine whether a compensation change is significant? In a recent British Columbia case, a judge found that, as a guideline, a reduction of more than about 15 per cent in pay can amount to a constructive dismissal.

 

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes.

E-mail: Dan@canadaemploymentlawyer.com

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