Sometimes even columnists get their legal advice wrong
By Howard Levitt
The co-host on my Sunday radio show, Iain Grant, often comments on the advice that callers — employees and employers — often receive, which subsequently causes them to call in to the show.
Two columns from two lawyers in a newspaper last week illustrate his observation.
One of the questions was this: “I am off on medical leave with a torn rotator cuff. I had to wait months for an MRI and to see a specialist, then my employer called in the interim and told me I can’t come back to work. To my knowledge, she has to welcome me back with the same rate of pay and the same amount of hours. Is that true?”
The lawyer’s response was: “An employer should return the employee to the same position he or she held before the leave, unless there is a legitimate business reason for not doing so that the employer can prove. An employer is also well advised not to reduce an employee’s rate of pay or hours.”
That advice is problematic at best. If the employee is fully capable of performing the same position, only then does the advice apply. But if the employee cannot perform all the previous tasks, the employer has a legal obligation to accommodate them by modifying their role or providing a different job that they can perform within their medical limitations. If the employee is only able to perform a lesser job, the employer is not required to retain their previous rate of pay but to pay them based on that new, lesser set of functions. To the point, directly contrary to the advice provided, the employee need not be returned either to their old position or their previous pay rate.
Moreover, the employee cannot hold off returning until they are capable of performing their full previous job, but must return to a lesser modified role they can do. On the flip side, the employer cannot prohibit the employee from returning until they can perform all their previous job functions but must let them return as soon as there is any legitimate role they can perform.
To facilitate this, I have my employer clients require such on-leave employees to obtain from their doctor functional ability reports, which delineate that person’s functionalities and limitations so that modified work can be devised. An employer is not required to accept the too-common doctor’s note scrawled on a prescription pad, which provides no relevant information, but can insist the doctor detail the employee’s actual abilities and limitations.
Even if the employee can return to the same job but with reduced functionality, the employer can reduce their wages. If they produce 10 per cent less, pay can be cut accordingly. Many employers do not do that, especially for a short-term basis, as it has an obvious egregious impact on morale. But they have a legal right to do so.
In the same way, if an employee’s medical condition permits them to work reduced hours, they must return on that basis with a proportionate reduction in pay. In short, the advice provided in that newspaper was wrong and there is risk to relying upon it.
The other erroneous column, by a different lawyer, dealt with resignation versus termination. That lawyer stated that “employers know that proving just cause for dismissal is a difficult task, so they will sometimes threaten misconduct as a means to provoke a resignation instead. However, courts often recognize that employees who submit hasty resignations when faced with unproven allegations of misconduct have not legally resigned. Rather these are resignations given under pressure or duress, which are almost never upheld.”
That is not true.
It is true that an employee who submits a resignation emotionally, on the spur of the moment, can rescind it if they do so reasonably promptly. Employers, for their part, are not permitted to shout “Eureka!” and quickly accept that resignation with impunity. But it is not true that a resignation, in response to unfounded allegations of misconduct, or even disciplinary warnings, are legally ineffective. Many employees who face unproven warnings will resign, deciding that they would rather leave voluntarily than potentially be ultimately terminated. Others, faced with allegations of misconduct, decide they no longer wish to work in that environment. Yet others resign believing that future promotions or bonuses will be unlikely. Contrary to the legal advice provided, those resignations are voluntary and will be upheld if challenged.
It is only if an allegation of misconduct is so unwarranted and repeated as to create a toxic work environment, one that no average employee could reasonably put up with, that a court would conclude the employee was constructively dismissed. There is no licence for an employee receiving a warning letter, even if unproven, to resign and claim constructive dismissal. In short, resignations in response to such a warning are generally voluntary.
The same lawyer stated that “employees tendering their resignation are sometimes free to withdraw it and continue working as before, as long as the employer has not already accepted the resignation and taken steps to move on. For example, an employee who gives two weeks’ notice of his or her resignation is entitled to change his or her mind, but only if the employer has not already hired or promoted a replacement.”
This suggests that if an employee resigns, in anger, on the spur of the moment and the employer immediately accepts it and promotes a subordinate into their place, the employee can no longer withdraw the resignation. That is also not the case. Whether the employer quickly fills the position or not is irrelevant to an employee’s right to withdraw an emotionally and hastily conceived resignation. In fact, an employer moving with alacrity to accept the resignation and replace the employee is something the courts have discouraged. That employer may actually strengthen the employee’s case.
Of course, being given the option of resigning or being fired is a dismissal. Goading an employee into resigning is not a resignation, but it becomes one if the employee does not rescind it and attempt to resume work within a reasonably short period of time. If the employer does not permit that return, then it becomes a dismissal.
Another piece of erroneous legal advice in that column was that an employee who is asked to leave immediately following giving notice of their resignation must be paid for the time they had offered to continue to work.
There are two exceptions to this, one arguable and one certain. Some cases argue that employees who resign in order to work for a competitor and who offer notice, can be asked to leave immediately without being paid for the notice period they provided, since they are now in a conflict of interest. The legally clear exception is when an employee provides more notice than they would be entitled to if they had been fired, and the employer asks them to leave immediately. The most they can recover is the period of notice they would have received had they been wrongfully dismissed. For example, if a young short-service employee in a modest position, who would be entitled to two months’ wrongful dismissal damages, resigns as of four months from that date, and the employer asks them to leave immediately, the employer could only be sued for the two months, not the four months’ notice provided. This lawyer was wrong in suggesting otherwise.
(In my 24 years of writing a newspaper column, I have occasionally been challenged for my political views, but no one has suggested any legal opinion I have expressed was not accurate. Attempting to read every court judgment written across Canada every month, if not prophylactic, provides some reasonable assurance of accuracy.)