Can I Be Fired After Returning from Medical Leave in Ontario?
When an employee takes medical leave, they may assume their job is safe under the Ontario Human Rights Code. This legislation states that the workplace must be free from discrimination, harassment and reprisal due to protected characteristics such as disability. Thus, an employee taking medical leave should feel safe and may not question “can I be fired after returning from medical leavein Ontario”?
Is It Discrimination to Be Let Go After Medical Leave?
Consequently, when an employee returns from medical leave, employers can often find themselves in a delicate situation if they wish to discipline or terminate their employment. On the surface it can often look like this action is some sort of retaliation or attempt to get rid of the employee who was off on medical leave, which could constitute discrimination and bad faith. For this reason, some employers may be reluctant to terminate employees returning from medical leave even when there is a reason to do so, such as financial considerations.
What Should Employers Consider Before Terminating Someone After Medical Leave?
However, some employers tread much less lightly in these situations, as was the case in the recent British Columbia Supreme Court case of Plank v Hapnin Enterprises Ltd., 2024 BCSC 1949. In this case, the Plaintiff was a long-service employee who took a medical leave of absence in August 2021.
Upon her return to work in October 2021, her employer asked her to sign a new employment contract, which would reduce her hours and days of work. The Plaintiff refused and continued working as normal. Two weeks later, the employer terminated the Plaintiff’s employment for cause, alleging various incidents of misconduct. The Plaintiff sued for wrongful dismissal.
The court found that all the allegations against the Plaintiff were either untrue or did not constitute misconduct and awarded the Plaintiff compensation in lieu of notice.
The Defendant was fairly lucky to escape not getting hit with additional aggravated and/or punitive damages, as the court found that the actual manner of termination did not warrant the award of such damages. However, reading the decision, it very much appears that this termination was an attempt to get rid of the Plaintiff when she returned from her medical leave and refused to accept the Defendant’s request for new employment terms.
It’s possible that the Defendant dodged this particular bullet only because the Plaintiff did not raise the issue of discrimination upon returning from medical leave. If she had pleaded these issues, it is quite possible that in addition to the damages for failure to provide her notice, the court would have ordered the Defendant to pay additional damages for bad faith and/or discrimination.
How can Whitten and Lublin Help?
Can I be fired after returning from medical leave? The answer to the question is that it depends. Employees who return from medical leave can often be in an uncertain position, and courts have recognized that they are quite vulnerable. For this reason, any actions taken against an employee in that position are subject to heavy scrutiny and can be grounds for both dismissal and aggravated damages. If you are an employee who is in the process of returning to work following medical leave, Whitten and Lublin is here to assist you. Contact us online or by phone at (416) 640-2667.
Author – Aaron Zaltzman