If a change in work hours has a substantial impact on your lifestyle, it’s a constructive dismissal
I once promised to produce a monthly Q&A column but have been profoundly remiss. To make up for it, here is the first of two columns based on common questions asked online about employment law, along with the “right” answers.
Can a contractor claim wrongful dismissal?
The answer is: usually. First, there are very few actual independent contractors. The vast majority of workers who are referred to that way, even if they have a contract specifying that they are “independent contractors” and even if they invoice their “clients,” are employees at law. It is one of the biggest, possibly the biggest, boondoggle perpetrated on our taxation authorities because so-called “contractors” will deduct “expenses” and therefore pay less tax than is legally permitted.
But even a genuine contractor, if they are largely dependent upon one client, work for that client on a regular weekly basis, derive most of their income from that company and, to the outside world, look like an employee of that company, will be permitted by the court to sue for wrongful dismissal. There was one recent case where such an actual “dependent contractor” was awarded 26 months’ severance by an Ontario Court.
It is only true independent contractors who can be fired without notice or severance.
Can an employer change your hours of work?
It can to a very limited degree, but if that change has a substantial impact on your lifestyle, it is a constructive dismissal permitting you to refuse the change and sue as if you had been fired. As well, if you have elder-care or child-care obligations and that change prevents you from fulfilling them, then the employer cannot change those hours until you can reasonably work out alternate arrangements. If it does so, it is a violation of human rights legislation.
How do you get short-term disability (STD) approved for anxiety and depression?
You have to go to your doctor and obtain medical evidence that your anxiety and depression, which all of us have to some degree, is so crippling that you cannot perform your job functions and cannot be reasonably accommodated by your employer. With that evidence, you will obtain STD benefits if the employer has an STD policy. Not all employers have such a policy and a large number of employees, however crippling their disability, are reliant upon EI sick benefits or some minimal paid leave, depending on a province’s applicable legislation.
Do I have a right to a leave of absence?
There is no right to a leave of absence except for those leaves covered by statute, such as a maternity or paternity leave or an emergency leave. Also, if you are disabled from doing your job, you are entitled to that time off. Whether it is paid beyond EI, is a function of whether your employer has an STD/LTD policy.
Does human rights legislation protect me from being yelled at?
Being yelled at is not covered by human rights legislation unless you are being yelled at, at least in part, because of your race, creed, colour, gender, sexual orientation, handicap or the other items specified under human rights legislation. But if you are yelled at to a sufficient extent, it could be a constructive dismissal, permitting you to resign and sue as if you had been fired.
How do I decertify a union?
If you can get a certain percentage (varying by province) of the employees in your bargaining unit to sign a petition in a proper form supporting the decertification, and management is involved in no way with the process, then the labour board will order a vote and, if the majority of those who actually vote support decertification, you will succeed. You should collect those signatures outside of company property and management cannot assist in any way, even by discussing it with you, or your application will fail.
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What counts as “just cause” to resign a job and sue?
If an employer fundamentally changes the terms of your employment adversely or treats you so abusively that no reasonable person could put up with it, then that is a constructive dismissal permitting you to resign and sue as if you had been fired. You must obtain legal advice to ensure that the treatment is indeed a constructive dismissal. As in many areas of employment law, “everybody purports to be an expert” and many have very subjective views of what treatment is sufficiently atrocious to warrant resigning and suing.
What is harassment protected by law?
For conduct to qualify as harassment, the abuser must know that they are subjecting you to an untenable working environment or it is obvious that they would know. The conduct must be serious, not trivial. Reasonable discipline or the exercise of management authority is not legal “harassment.” The legal test for harassment is objective, not subjective. Many workers have thin skins and see harassment based on matters that would be viewed as too trivial to qualify if a harassment claim was brought.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.