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I may have been fired due to my illness. What can I do?

THE QUESTION

I was diagnosed with lupus. Since my diagnosis, I've had an uphill battle with my employer, especially while trying to return to work.

My employer then terminated me saying that I abandoned my job because I was absent, without communicating with them, although this is untrue. What can I do?

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THE FIRST ANSWER

Daniel Lublin

Partner, Whitten & Lublin Employment Lawyers, Toronto

If your employer's actions had any connection to your diagnosis, even just a slim one, it is discrimination. Illnesses are protected by workplace human-rights legislation. Employers are required to accommodate medical conditions by taking steps to allow ill and disabled employees to work in barrier-free environments. Human-rights legislation also prevents employers from taking any form of adverse action, including discipline and dismissal, against employees due to their conditions.

You should file a human-rights complaint with your provincial human-rights commission, or if you work for a federally regulated employer, such as a bank or airline, the Canadian Human Rights Commission. Human-rights judges can order employers to take any necessary step to remedy workplace discrimination, including awarding damages for lost wages, damages for your pain and suffering and, in extreme cases, even ordering reinstatement. In some provinces, you could also file a lawsuit against the company and make the human-rights claim part of that lawsuit.

If you are a unionized employee, you should file a grievance complaint with your union, which can also lead to an arbitrator awarding remedies including damages and reinstatement.

THE SECOND ANSWER

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Bruce Sandy

Principal, Pathfinder Coaching and Consulting, Vancouver

Stress can exacerbate autoimmune conditions such as lupus. Please ensure that you are taking care of your health and getting the medical and health-care support that you need.

The bottom line is you were wrongfully terminated. Your employer is obligated to accommodate you in the workplace, and cannot discriminate against you based on the medical condition which you had disclosed to them.

If you are a unionized employee, then you need to speak to your shop steward or union representative. The union will need to file a grievance on your behalf for the wrongful dismissal. An arbitration process will take place if there is not an early satisfactory resolution to the grievance.

If you are a non-unionized or excluded employee, you need to seek the advice and support of an employment/labour lawyer . Your lawyer will point out that your employer has breached provincial and human-rights legislation.

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The lawyer will discuss appropriate remediation for your wrongful dismissal such as monetary damages and possible reinstatement. You will need to seriously consider if you want to be reinstated since you know your employer's stance and views on your situation.

I recommend that you polish up your resume, engage your professional network and look for a position in a company which will respect and appreciate you and your human rights.

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About the Authors
Globe Careers employment law expert

Daniel is a nationally recognized workplace law expert and a partner at Whitten & Lublin (www.toronto-employmentlawyer.com), where he represents both individual and corporate clients. Daniel frequently writes and appears in the media as a commentator for workplace legal issues. Since 2008, he has been named as one of Canada's top employment lawyers. More

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Bruce, principal More

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