Financial Post: February 03, 2012. All Rights Reserved.
Following free legal advice can sometimes end up costing you what you didn’t pay in the first place.
This came to mind recently when I happened upon a legal Question & Answer opinion column in a free paper distributed in many Canadian cities titled: “There’s often a big difference between what the law says and what people can actually get away with.”
The first question asked about firing a woman on maternity leave. While the answer “should be no,” the columnist said, he added that many employers got around this. “All an employer must do is claim there is some form of restructuring, even if it is not true, and the legislation can be circumvented.”
That view, in my opinion, is more than quixotic. Were a lawyer to advise her client in that fashion, it could result in the client experiencing significant liability (not to mention the potential law society sanctions against any lawyer who actually advocated that a client do that). Such a view assumes employment standards and human rights tribunals don’t investigate. Unfortunately for any employer asserting a nonexistent restructuring, they do, and assiduously.
There is no employee protected more than a woman fired while on maternity leave. Not only can she sue for wrongful dismissal, but where a link between the discharge and the leave is found, the employment standards branch and human rights tribunal/commission can intervene with more powerful remedies than a court, including reinstatement, backpay and other compensation and penalties.
Worse, an employer found to commit this offence could be rebuked by the media and its reputation spoiled among customers, suppliers and potential hires. In my experience, both the human rights and employment standards regulations in almost every province improperly almost always assume the employer was miscreant. As a result, the onus is on the employer to prove maternity leave had nothing to do with the discharge.
In short, if an employer fires an employee on maternity leave and falsely claims restructuring, its prospects of success is minimal.
The second proposition was equally astonishing to me. The question it posed: “Can I fire an employee on disability leave?” The answer: “Similar to a parental leave, the answer is technically no, but practically yes.” It went on to say employers “just call it something else and often get away with it.”
I cannot think of any group of employees that human rights tribunals, in practice, afford more protection to. With the narrow and limited legal exception of “frustration,” a disabled employee generally has a much better case for wrongful dismissal than employees who are not disabled. A very rare employer may “get away with it” but, almost invariably, human rights tribunals conduct vigorous hearings to ascertain if the “something else” that the employer called it was bona fide, legitimate and sufficient.
On a third question about seeking other employment on your employer’s time, in sharp contrast to the first two, the advice was far too conservative.
“Even sending an application from your personal email account but through your workplace computer could be cause for discharge,” the columnist noted. That advice bespeaks a view of cause that is far more lax than the rigorous tests the courts have evolved. To be cause for discharge, especially without prior warnings, misconduct must be extraordinarily serious — fraud, theft, etc. In the unlikely event a court ever found that cause existed because of a single, or even several, email applications for new jobs being sent from the employer’s computer, I would recommend an appeal.