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THE QUESTION

I’ve been employed with the same employer, a women’s clothing boutique, for 11 years. I recently was off on short-term disability. My return to work had weightlifting restrictions below 15 pounds set out by my physiotherapy and insurance. My employer had stipulated to insurance that I had to be able to lift 50 pounds, yet at no time have I ever had to lift 50 pounds. When I met with my manager about returning to work, she ended my employment “due to changes within the company.” They offered a two-month severance package. I also had to sign a release that I would never disclose my terms of the termination. And if I did not sign by a specific day, my severance would be null and void.

By law in Manitoba, they have to give me eight weeks’ pay in lieu of working notice. Should I go after more? If I don’t sign, will I not get my severance? I believe this is a wrongful dismissal due to my weightlifting restriction. My restriction will not cause the company any undue hardship and does not affect my co-workers.

THE FIRST ANSWER

Randy Ai, principal lawyer, Randy Ai Law Office, Toronto

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Under the common law, you are generally entitled to one month of notice or payment in lieu of notice for each year of completed service. This is considered the “rule of thumb” – which is an approximate guideline or generalization. In actuality, the length of the notice period may be adjusted up or down, depending on a number of factors, including your age, salary, position, seniority, length of service and also prospects of re-employment. As well, your employment agreement may also limit the amount you receive upon termination, depending on whether there is an enforceable termination provision.

If we were simply to apply the common law “rule of thumb” based on your length of service alone, then you would be entitled to approximately 11 months of notice or payment in lieu of notice. This amount greatly exceeds the eight weeks that you were offered. I would strongly advise that you seek independent legal advice, but it would appear that you may be entitled to additional compensation.

I would advise that you do not sign the termination documents and especially the full and final release until after you have received independent legal advice. If you sign the full and final release you will lose your rights to commence a lawsuit against the employer in the future.

Further, you are correct that you have been subject to a wrongful dismissal, as there does not appear to be any just cause for your dismissal (i.e. you did not engage in misconduct or any other action that would constitute just cause). I also sense that the employer may have violated human-rights legislation and discriminated against you on the basis of disability. The employer is obligated to accommodate you to the point of undue hardship. You may be entitled to additional human-rights damages should you pursue your employer in the courts or the human-rights tribunal.

THE SECOND ANSWER

Charles Osuji and Claire Lee, Osuji & Smith Lawyers, Calgary

There is a common misconception amongst employees that an employer cannot terminate an employee on a disability leave as it would be considered discriminatory; however, it is still within the employer’s right to terminate any employee so long as the reason for termination is entirely unrelated to the disability or medical condition of the dismissed employee. Nonetheless, while the employer may have other justifiable reasons to terminate an employee, a dismissal during the leave, or immediately following the leave, creates a presumption that the two are connected and it is reasonable to infer that the dismissed employee’s disability was a factor in the termination decision.

In such cases, the employer is expected to prove that the employer terminated the employment for a non-discriminatory reason and that the disability was not a factor in their decision. If the employer can successfully establish that there were other unrelated reasons to terminate the employee, then its decision to terminate the employee on their leave or following their leave would be justified. It is important to note that the discriminatory reasons do not need to be the sole or even the primary reason for the termination. In other words, if the decision to terminate the employee was influenced by the employee’s disability or medical condition, even slightly, it is sufficient to establish discrimination and the employer would be considered to have breached its obligations.

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If in Alberta, you would receive at least eight weeks of termination notice based on your 11 years of service. This is a guaranteed termination notice provided by the Alberta Employment Standards Code, and you would be entitled to this statutory minimum regardless of whether or not you sign a release in favour of the employer. Also, an effective release must offer the dismissed employee more than what they are already entitled to; therefore, the employer cannot ask you to sign a release for only the minimum notice provided under the employment standards legislation. You may be entitled to more severance based on your age, position, experience, length of service, availability of alternate employment etc., subject to the terms of your existing employment contract. Under the circumstances, we encourage you to consult with an employment lawyer in your community to better understand your rights and entitlements.

Have a question for our experts? Send an email to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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