If you return from disability leave and your employer tells you that your old job no longer exists, you may feel like you have no choice but to accept whatever position is offered.
One Ontario employee didn’t.
After approximately 17 years with a towing company, he went from being the company’s “road boss” — a management role — to being told he would return as a tow truck driver at a lower rate of pay.
He challenged that demotion through my employment law firm, Samfiru Tumarkin LLP.
Our firm took on his case and secured a significant victory for him.
The court found that he had been constructively dismissed and that his medical leave did not mean his employment was over.
He was also awarded a 22-month severance package.
The employee’s result amounts to more than $180,000 in compensation.
This was not simply a disagreement over a demotion. The employer argued that his lengthy medical absence meant his employment had effectively come to an end.
Our firm successfully challenged that argument and established that the changes made to his job amounted to a constructive dismissal.
For employees, broader lessons are important.
Being away from work for a long time does not automatically give your employer the right to end your employment, eliminate your position, or put you into a significantly worse job.
READ MORE: Fired after returning from stress leave? 4 things employees in Ontario must do
His job changed while he was on disability leave
The employee had worked for B&B Towing for about 17 years and eventually became its road boss.
His job involved supervising drivers, dealing with vehicle repairs and maintenance, handling administrative duties, and performing some towing-related work.
In 2020, he underwent emergency surgery and went on long-term disability.
As his recovery progressed, his doctors supported an attempt to return to work with some medical restrictions.
But while he was still away, the company told him that his road boss position had been eliminated.
Instead, he would return as a tow truck driver.
He would also eventually earn less money.
Get daily National news
That is not a small change.
Going from a management position to a lower-paying driving job can fundamentally change someone’s employment.
That is why the employee treated what happened as a constructive dismissal in Ontario.
In simple terms, constructive dismissal can happen when your employer makes a major change to your job without your agreement. The law can treat that change as though you were fired.
A long disability leave does not automatically end your job
The employer argued that the employee had been away from work for so long that his employment was effectively over.
That argument failed.
You do not automatically lose your job simply because you have been on disability or medical leave for an extended period.
The real question is whether you can reasonably return to work, including with medical restrictions, and whether your employer can accommodate those restrictions.
In this case, the evidence supported an attempt to return to work.
The employee’s road boss position also included management and administrative duties, not just physically demanding towing work.
The court wasn’t convinced that his medical condition meant his job was over.
That is an important point for anyone on disability leave.
Your employer generally has a duty to accommodate medical restriction up to the point of undue hardship.
That does not mean every employee will always return to exactly the same duties.
But an employer can’t simply look at the length of your medical leave and decide that your workplace rights have disappeared.
READ MORE: Can I be fired if my short-term disability is denied? 4 things Canadians must know
You don’t have to blindly accept a demotion
I regularly speak with employees who are returning from medical leave and are told, “Your old position is gone, but we have another job for you.”
Many believe they have only two choices.
Accept it or resign.
That is not always true.
Your employer usually can’t make major changes to your pay, responsibilities, or position without your agreement.
A significant demotion at work can amount to constructive dismissal.
There is also an important difference between a temporary change meant to help someone safely return to work and permanent demotion.
Modified duties can be a legitimate part of accommodating an employee.
Permanently moving a longtime manager into a lower-paying, less senior role is something very different.
If that happens to you, do not resign immediately.
Get advice from my team of lawyers first.
READ MORE: Dismissed after challenging a demotion? 4 things employees in Ontario need to do
He was owed 22 months of severance
The financial consequences in this case were substantial.
The employee had approximately 17 years of service, and the law determined that he was owed 22 months of compensation.
Many employees dramatically underestimate how much severance pay in Ontario they could be owed.
There is no simple rule that says one year of service equals one week or one month of severance.
Your age, position, length of service, and how difficult it may be to find similar work can all affect the amount.
For some long-service employees, full severance can reach as much as 24 months’ pay.
That is why quitting after a major change to your job can be a costly mistake.
If your employer’s changes amount to constructive dismissal, you could give up significant compensation by walking away before getting legal advice.
Returning from disability leave? Be careful what you agree to
If you are returning from disability or medical leave and your employer tells you that your old job is gone, do not assume you have to accept whatever comes next.
Ask questions. Get the proposed changes in writing. Make sure your medical restrictions are properly documented.
Most importantly, do not resign, accept permanent demotion, sign a new agreement, or give up your rights before you understand the consequences.
Your employer may call the situation a restructuring, a new role, a return-to-work plan, or the elimination of your old position.
Those labels do not decide your legal rights.
What matters is what is actually happening to your job.
For the employee in this case, challenging a major demotion resulted in a 22-month severance period and a significant court victory secured by our firm.
Most termination and severance disputes never need to go that far. In many cases, the issue can be resolved quickly once the employee understands what they are actually owed.
If your job, pay or responsibilities are being changed after a medical leave, speak with an employment lawyer at Samfiru Tumarkin LLP before you agree to anything.
You need to know whether your employer is properly accommodating your return — or whether you are actually being pushed out of your job and could be owed substantial severance.
