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Howard Levitt: How do I go on stress leave, what counts as harassment and more workplace questions

Tired young woman fall asleep working at laptop
Tired young woman fall asleep working at laptop

Here are some recent questions we have been hearing about everything from working from home to where to draw the line between an unpleasant boss and harassment.

Q: I signed an employment contract. Will that limit how much severance I receive?

A: Most contracts more than two years old are unenforceable because of changes in the law. There are reasons to invalidate many newer ones as well.

Q: Are non-competition covenants or non-solicitation covenants enforceable?

A: In Ontario, new non-competition covenants preventing you from working in the same industry have just been abolished by statute. Existing contracts with them can be enforceable, but few non-competition covenants are drafted properly and, as result, they are often struck down by the courts. Most non-solicitation covenants, preventing employees from soliciting customers and employees of their former employers, are enforceable, but they do not stop customers from coming to you.

Q: If I am unionized, can I sue for wrongful dismissal?

A: No, you can only grieve through your union. Unlike with non-union employees, a layoff of a unionized employee is not a wrongful dismissal so as to entitle you to damages. Unionized employees can generally be laid off with impunity.

Q: Do I have to co-operate with my employer’s investigation of my conduct?

A: Employees are required to honestly answer questions involving investigations of serious concerns.

Q: What are my rights then if I am being investigated?

A: You should obtain legal counsel, understand what the issues are, demand to see the evidence against you and be ready to sue if you are fired, both for the firing, if there was no serious wilful misconduct, and the embarrassment the process caused.

Q: Does anyone survive a “performance improvement plan?”

A: If the employee largely meets the requirements of the plan or the standards themselves are unreasonable, and the employer fires you, you will win your case for wrongful dismissal. But understand, when an employer puts you on a performance improvement plan, they are looking to fire you and you should be focusing less on preserving your job than on making sure you receive full wrongful dismissal damages.

Q: How do I go on stress leave?

A: It is pretty simple. You obtain a medical note stating that you are psychologically disabled from performing your functions. The company is free to have that note challenged by its doctor and you may ultimately have to prove that disability to the satisfaction of the disability insurer. But if a company fires you after producing such a note, you can not only recover greater wrongful dismissal damages because you are in no medical position to find other work, but also often human rights and punitive damages as well.

Q: How can I tell if I was fired for being too old?

A: When the boss uses the word “retirement,” she is saying that she is firing you because of your age. If they do not use that word, ask yourself, who else are they firing? Are they selecting the oldest, in which case, a court of the Human Rights Tribunal is likely to consider that to be the reason unless there are compelling reasons why you should be fired otherwise.

Q: Am I being harassed or is my boss just a jerk?

A: Harassment allowing you to sue your employer, or claiming constructive dismissal, is not in the eyes of the beholder. If a normal person would find the conditions you are subjected to intolerable, that is legal harassment allowing you to sue.

Q: Can my employer make me sign a new contract?

A: Never. You can refuse to sign and continue without a contract or continue with the previous one.

Q: But if I sign it, is it enforceable?

A: Unless you are provided with something new in return for it, no employment contract is enforceable. There are also other legal reasons that allow you to successfully challenge a contract. There are very few contracts in Ontario that I cannot set aside.

Q: Can my employer force me to wear a mask at work even though mask mandates have ended?

A: Yes.

Q: My employer wants to change where I work from Toronto to Brampton but I am not okay with the commute — now what?

A: If you are an executive, you can be expected to commute. If you are someone earning very little and have to take public transportation and your 20-minute commute is being turned into a 4-hour daily commute, that would be a constructive dismissal.

Q: What if a commute is from Toronto to Ottawa?

A: Unless you are an executive of a national employer with the expectation of moving from the time you started, that is a constructive dismissal.

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.