Law Times

PAGE 10 FOCUS November 14, 2011 • Law Times Employers count on ignorance of rights Continued from page 9 responds that it never fi red her and would be happy to have her back. Soon after, both sides set- tle out of court for a modest amount of money. Toronto employment lawyer EARLY BIRD SPECIAL prices as low as $ based on standing order of 100 copies or more 60 With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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Visit canadalawbook.ca or call 1.800.387.5164 for a 30-day no-risk evaluation CANADIAN LAW LIST OLPB_EB_1-4-3X L.T.indd 1 10/19/11 3:15 PM Kevin Marshall has a term for this scenario: blurring. Th e em- ployer didn't fi re the woman, but she felt as though it had. "Wrongful dismissal is very clear," says Marshall. "Th at's where, for example, a person loses their job. Th ey get a letter indicating as such and they of- ten get a package." But in constructive dismiss- al, Marshall continues, "the employer has done something fundamental, a big change, in their status of employment. For example, overnight they get a 25-per-cent cut in pay but they have the same responsibilities. So, the em- ployee is very upset." If that person decides to response, stop working in the employer will take the position that the employee has resigned and isn't en- titled to anything. So the question then becomes: what's a termination and what's a resignation? "Th at is the big issue," says Marshall. "Th at is a pretty clear example because in that case, the courts will generally rule in favour of the employee. But some- times it's trickier." Th e issue can be particu- larly diffi cult in a situation where the person can't work because of a disability and has been off work for a long time. "Th at is where there is a blurring between resigna- tion and termination," says Marshall. "Th ose cases tend to be most diffi cult. Employers have a duty to accommodate the disabled employee the best they can." But Marshall notes he un- derstands how it can be diffi cult for employers as well, particu- larly for small companies that have to handle the employee's duties. Do they hire someone short-term or for longer? In the meantime, they may not know how long the employee is go- ing to be off . But according to Marshall, it's not uncommon for small employers to not respond to employees who are on disability as though they never existed. "It's very common for some 'The employer has sometimes erroneously moved on when they still have obligations to the employee,' says Kumail Karimjee. CITED BY THE SUPREME COURT OF CANADA CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL "The most comprehensive text on employment law in Canada. It is carefully constructed and accurate." Canadian Bar Review MORE THAN 5,800 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. 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AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.canadalawbook.ca Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® www.lawtimesnews.com small employers to do that. I do notice there is a clear trend," he says, adding that be- cause employers believe most employees don't know the law very well, they'll eventually just give up and fi nd a job some- where else. "Th e hope in many cases, which is often true, the employee [accepts] the situa- tion and basically gives up, in which case the employer is vin- dicated." In the case of the woman who had the car accident in 2009, she had Marshall repre- senting her in a claim related to that issue. He helped her draft some letters and eventually fi le the constructive dismissal claim. "She just mentioned this situation with her employer," says Marshall, who then noted he could help in the employ- ment matter. "So in this case, I guess she kind of lucked out. She prob- ably wouldn't have thought to contact an employment law- yer." Kumail Karimjee of Karim- jee Greene LLP in Toronto says he has seen this type of situa- tion before, particularly when employees are off on extended disability leave. "Th e employer has some- times erroneously moved on when they still have obligations to the employee," says Karim- jee, who represents both em- ployers and employees. "Th at certainly does happen." When he's representing employers, Karimjee reminds them of their legal obligations to their employees. Th ey in- clude the Ontario Employ- ment Standards Act that allows for emergency leave and the Ontario Human Rights Code that allows for extended leave and accommodation upon re- turn to work. "Th ere are a lot of obliga- tions on the employer under this context that they need to be aware of," says Karimjee. "I think sometimes what happens is the employers, after the em- ployees have been off for an ex- tended period of time, they've moved on in a sense. Th ey are functioning without having had that employee within the workplace."

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