Here are the answers to some of the most recent questions about workplace law that have come our way
Employees and employers ask us all the time about their rights and obligations. Here’s a look at some recent workplace law questions that came our way through this column
Q: An employee of mine has been on thin ice for a year and I have issued him a series of warnings. Just as I was ready to fire him, he came in with a doctor’s note. I do not believe it is legitimate. Do I have any recourse?
A: This is not uncommon. It might be that he is stressed at the risk of being fired and for that reason the doctors diagnosed him as depressed, anxious, etc. On the other hand, it may be entirely illegitimate. It is not difficult to obtain a doctor’s note saying virtually anything.
I recommend you have him seen for an independent medical examination by a psychiatrist to determine whether he is genuinely, objectively disabled from working or, for that matter, whether there are mental-health issues that have contributed to his deficient work. If mental health has caused the deficiencies, he must be accommodated.
The other alternative, if you do not wish to spend the money on a defence medical, is to ask his doctor not for the diagnosis, which you cannot legally request, but for his functionalities and limitations — that is, what he can and cannot do — and then design his job accordingly.
Finally, if his medical issues do not impact the reasons you wish to discharge him, they do not prevent you from dismissing him. But if you fire an employee who is already depressed, anxious, etc., you risk a longer wrongful dismissal judgment, because it will take longer for them to be reemployed and there’s potentially a greater risk of a mental-stress claim in the form of aggravated damages.
Q: If an employee is behaving very badly, but entirely uncharacteristic from his normal behaviour and performance, do I face any risk in firing him?
A: In such circumstances, you have a duty to inquire under human rights law to ask if there are any issues that could be impacting his unusual behaviour, such as substance abuse or mental-health issues. Although that may seem itself to be an intrusion on privacy, it is your legal obligation. If they have such issues, you have a right to insist the employee seek treatment and comply fully with the treatment recommendations.
Q: I was placed on an unpaid leave of absence because I refused to disclose my vaccination status five months ago and have now been terminated. How strong is my case?
A: The employer would have been in a better legal position five months ago to terminate you rather than place you on an unpaid leave of absence. At that time, the preponderance of decisions supported employers firing with cause those employees who worked in proximity with others, refused to vaccinate or even refused to disclose whether they were vaccinated. The conditions are different today.
For example, the Toronto Police Service recalled everyone back to work as have many others. I expect others yet to do so. The recommendations from health authorities and the objective safety conditions have changed so that the employer does not have quite as strong a case today as it did only several months ago.
The issue will be what the conditions were in terms of health in that workplace at the time of the dismissal. I think that your case for unpaid wages to date based on the earlier leave of absence is weak, but the case for your dismissal is now stronger than before. With cases and variants changing monthly, there remains a substantial risk
Q: My company does not have a vaccine mandate policy and unvaccinated employees are working around me. I feel very apprehensive about that. What are my rights?
A: None. Employers are not required by law to impose mandatory vaccinations at their workplace. As long as the employer can establish that the workplace is objectively safe, it has no liability and you have no claim. If you question your particular safety in your workplace, you can call on a Ministry of Labour occupational health and safety inspector to do an evaluation and that evaluation is binding.
I recently wrote about the perils of employees with inherently small cases making exaggerated allegations then abandoning them while suing employers in Superior Court when their cases only warranted small claims. I noted particularly the articulate castigation by Justice Paul Perell of the parties’ conduct in the case of Sonia Gracias and Walt Dentistry and the judge’s warning that they should seriously consider whether to ask for costs since he was inclined to award none. The judge expressed that view so strongly that I noted: “Such parting words would send shudders through any lawyer, let alone litigant.” Both parties should have listened to him (and to me). Below is Perell’s cost award:
“Given that Ms. Gracias had abandoned her very serious allegations of human rights violations without substantiating them and given that she had been dilatory and deleterious in how she managed her responsibilities with respect to production of documents and in answering undertakings and given that Rule 57.05(1) provides that if a plaintiff recovers an amount within the monetary jurisdiction [then $25,000] of the Small Claims Court, the court may order that the plaintiff shall not recover any costs, it is with chutzpah piling on top of audacity piling on top of gall that Ms. Gracias has the nerve to request partial indemnity costs of $35,000, all inclusive.
“Given that Walt Dentistry was the unsuccessful party and given that it had abandoned its serious allegations of dismissal for cause without substantiating them and given that it failed in its efforts to prove that Ms. Gracias had fabricated evidence and with the added spice of set-off irony to go along with its own chutzpah-audacity-gall, Walt Dentistry has the nerve to submit that although it agrees with my inclination to award no costs on the summary judgment motion, it should be paid its costs thrown away in the amount of $17,387.88.
“Having read the parties’ persisting bitter recriminations one of the other, I am persuaded that the appropriate award in the circumstances of this case is that there should be no order as to costs.”