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Worker on sick leave is not legally entitled to paycheque

Sick leave

Marek Slusarczyk/Getty Images/iStockphoto

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The question

I believe I am a victim of harassment and discrimination in the workplace. I have been given medical leave from my family doctor and haven't received a paycheque from my employer since. After being on medical leave I went to the office to see if my cheque was placed in my mailbox only to find the locks have been changed. A co-worker has said that he was given instructions not to speak to me.

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Prior to my medical leave, I was harassed by my employer to sign documents that I believed to be false. I mentioned I would seek legal advice and have the documents reviewed before I signed anything. They approached me again and said if I don't sign the document they will find someone to replace me.

I am seeking advice and possible legal action.

The answer

This individual's story demonstrates the public's misconception over the meaning of workplace "harassment" and "discrimination." Employees routinely claim that any perceived mistreatment at work amounts to a legal claim. They are often mistaken.

The problem with allegations of harassment is that the conduct being complained of is often in the eyes of the beholder. By this, I mean that two people will often view the same situation differently so a request to sign a document, for example, may be seen as harassment to one person or just part of the job to another. Here, if what she says about being threatened with her job is true, her employer has certainly acted improperly, but this does not make it a form of legal harassment.

Employees also often claim discrimination because they have been treated differently at work. However, human rights laws do not simply protect employees from differential treatment, they only address differential treatment based on personal characteristics, such as race, age, religion or disability, for example. Therefore, there is nothing discriminatory with singling an employee out for discipline or dismissal. It is only discrimination if that decision was made based on a personal characteristic, such as an illness.

Here, as an example, this individual claims that she is a victim of discrimination because, once off work on medical leave, her paycheques stopped coming. This would be a novel claim for discrimination, except that there is nothing wrong with it. She is not entitled to pay from her employer for time away from work. Rather, human rights laws only provide her with an entitlement to time off work, if sick, and reasonable accommodation for any illness when she returns.

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Daniel A. Lublin is a workplace law expert and a partner at Whitten & Lublin. He writes on legal issues for Globe Careers.



Wednesday at noon (ET), join Globe Careers for a live discussion with Daniel Lublin.

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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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