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Will I get my job back after a long illness?

The Question

I had a car accident in September, 2011 and have not returned to work. I provide a doctor's note regarding my medical leave every seven to nine weeks to my employer. How long can my employer hold my job? If and when I return can they refuse me?

The Answer

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Your reinstatement after a long-term illness or disability is protected by human rights legislation. Although, there are two exceptions – the first is where your prognosis is such that you may never return to work. If there is some medical consensus that this is the case, then your employer can argue that the relationship is "frustrated" and end your employment. The other scenario is where an employer can show that accommodating your absence is impossible, such as where the department you worked in closed and your position was eliminated. In that case, reinstatement will not be an option.

The Question

I am a 61-year-old executive and in my 13th year with my current employer. The company was sold six months ago. The chief executive officer – my boss – has indicated there will be restructuring as the new owners want a flatter organizational chart. I am not in danger of losing my job but my responsibilities will be changing. Do I have to accept these changes or can I force constructive dismissal? The new owners have already eliminated our long-term incentive plan that was introduced by the previous owners.

The Answer

Yes and no. Sometimes, even in the face of significant changes to your job, you have to remain with your employer. If the working conditions are not hostile or humiliating, and the pay is the same or even just similar, walking out and pursuing damages will fail. There must be something objectively unreasonable with remaining at work, such as being humiliated by reporting to employees that previously reported to you, that would justify departing. And without leaving the job, there are no economic losses to sue for. Therefore, even where your position or responsibilities change, it does not necessarily equate to a constructive dismissal.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com

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About the Author
Globe Careers employment law expert

Daniel is a nationally recognized workplace law expert and a partner at Whitten & Lublin (www.toronto-employmentlawyer.com), where he represents both individual and corporate clients. Daniel frequently writes and appears in the media as a commentator for workplace legal issues. Since 2008, he has been named as one of Canada's top employment lawyers. More

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