Date: Saturday, Oct. 28, 2011
Author: Daniel A. Lublin
Publication: The Globe & Mail
The question: I worked for the same concrete company for 15 years. Last year while playing a sporting game – nothing to do with the company – I was injured, blew out my knee, and consequently could not bend it to do my job. I went to the doctor and was advised in writing not to return to my normal job as a result of the injury, and I needed an operation on my knee, which could not be performed for at least a year, due to the hospital waiting list.
I was paid worker’s compensation and medical benefits from the company I worked for, but when my operation was “put off” for another year by the medical doctors involved, with me on paid medical leave, the company determined, “You no longer have a position here,” and stopped my pay.
A lot of the work required me to be bending my knee and working from my knees. They fired me but never told me in person or in writing. I gave them all my doctor’s recommendations and reasons for being unable to work in writing, but to no avail. Can a company fire you when on medical leave, stop payment and not even notify you of what they did? What severance should I expect?
The answer: Your employer did very little to assess your ability to return to your job and instead, just cut you off. This is a classic wrongful dismissal and discrimination scenario that happens much too often.
The law provides that you cannot be fired because of an injury, plain and simple. Every jurisdiction in Canada has human rights legislation which requires an employer to accommodate any medical condition you have, subject to some limitations. One of those limitations would be if it were impossible for the employer to accommodate your condition, or if your condition were such that you had no reasonable prospect of returning to your job. However, that is difficult for an employer to prove, especially without any evidence that they consulted you before firing you.
If you pursue this case properly, you should be paid. You can claim wrongful dismissal, a failure to accommodate and possibly additional damages for the way you were treated.
You can sue in court for wrongful dismissal and, in Ontario, you can also include a human rights claim in that lawsuit. Or you can complain to the provincial Human Rights Tribunal. Each forum has benefits and drawbacks. Get a good lawyer who specializes in this type of claim and then pursue it, subject to what your lawyer says.