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THE QUESTION

Can an employee be fired for requesting a reference letter for a job that that was applied for during the employee's sick leave?

THE FIRST ANSWER

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Heather Faire

Human resources executive, Atlanta

An employer, under general circumstances, can separate an employee as long as they are not doing so for discriminatory or illegal reasons and the employer provides the legally required notice and severance pay.

In your case, it is your prerogative to look for alternate employment while already employed.

It is sometimes smart to research and understand how your skills are valued in the open market.

However, requesting a reference letter from your current employer to aid in obtaining work elsewhere could be interpreted as a notice of your intent to resign.

Your current employer might think it prudent to speed up the exit process and begin the task of finding your replacement.

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My advice? If you don't want to risk losing your current job before you have another one, get your references elsewhere.

THE SECOND ANSWER

Daniel Lublin

Partner, Whitten & Lublin employment lawyers, Toronto

An employer does not have to advise its employees that it is considering replacing them.

Therefore, employees should not be held to a higher standard of disclosure.

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To this end, looking for another job while on an approved sick leave is not necessarily a conflict of interest or grounds for dismissal without severance.

There is nothing deceitful about planning for future employment in anticipation of recovering from an illness.

In some cases, the cause of an employee's illness is even work-related and a physician may recommend looking for another job elsewhere.

The fact that you begin your job search prior to formally resigning and while still receiving benefits should not be viewed as misconduct – indeed many people feel this is merely prudent behaviour.

Therefore, while your employer does not have to provide you with a letter of reference, it should provide you with severance if it terminates you over this.

Keep in mind that there are situations where an employee's actions during his or her sick leave provide an employer with cause for termination without severance.

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For example, if there is strong evidence of dishonesty while an employee receives benefits, such as he or she was not actually sick or was working elsewhere, both the employer and its insurance company have good reason to intervene.

However, simply looking for other work, without more, is not a form of misconduct.

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