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Debra, Lawyer
Category: Canada Law
Satisfied Customers: 99963
Experience:  Lawyer
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I live in Ontario and I have been on stress leave since Feb

Customer Question

My name is***** live in Ontario and I have been on stress leave since Feb 2016. My insurance company has deemed me fit to return to work. They advised their contract with my company said I only have to be fit to return to work at the category not the exact job. Their doctor proposed a back to work plan which my company declined. I am required to return to work full time on Nov 1 . The insurance company has closed my file. I have been an employee of this US company for 30 years. Please advise if there is anything I can do?
Thank you
Submitted: 10 months ago.
Category: Canada Law
Expert:  Debra replied 10 months ago.

Hello! My name is***** you for your question. I'm reviewing it now, and will post back again shortly.

Expert:  Debra replied 10 months ago.

I am sorry to hear of the situation.

Your employer is required to accommodate your needs arising out of your disability. So long as what you are requesting is reasonable they are obligated by law to provide you with what you need to meet the doctors listed requirements. The only excuse for not doing so is if this would cause them to undergo undue hardship.

So if they can accommodate you and are refusing to do so your next step would be to file a complaint with the Ontario Human Rights Tribunal. This would be a case of discrimination on the basis of disability in employment.

Does that help as a starting point?

Please feel free to post back with any follow-up questions you may have. If you don't have any then I hope I have earned a 5 star rating but if you don't feel that I have please don't hesitate to reply back and let me know what more I can do to assist you. Finally, please know that even after you rate me I will be here for you and you can ask follow-up questions if you think of them later on at no further charge of course.

Customer: replied 10 months ago.
They will claim undue hardship. I am aware of the stress of this job 2x was close to a nervous breakdown and continue to take drugs to manage daily life. I do not believe that I can return to this job. Is my only option to quit . My doctor will support for staying off but that will not last forever. I need a final resolution. Thx
Expert:  Debra replied 10 months ago.

But they have to prove it and they will have to show that they cannot financially afford to do what you are asking for.

If you have to quit then you should speak to an employment lawyer because this could be a case of constructive dismissal.

Do you know what that is?

Customer: replied 10 months ago.
I am somewhat aware but what would it require from me to proceed with constructive dismissal? What paperwork ,do I have a strong case?
Expert:  Debra replied 10 months ago.

It's not paperwork. It is a lawsuit.

I cannot know if your case is strong as I don't know the facts.

When an employer does something that fundamentally changes the nature of the employment so that it drives the employee to quit, this may be a case of constructive dismissal. This is usually the case when the employer reduces wages, cuts hours etc. It is also the case where the employer's conduct makes it intolerable for the employee to continue working.

If an employee does quit under these circumstances then the law is that constructive dismissal is wrongful dismissal and the employer will be liable for damages.

If you are considering this option it is crucial that you first consult with an employment lawyer so that you can get a legal opinion from an expert both about whether the facts amount to constructive dismissal and, as well, about what damages you may be entitled to.

Generally the damages would be equal to what you would receive had you been dismissed without cause. If that had been the case you would have been entitled to receive "reasonable" notice or pay in lieu of notice.

Generally, in determining what is reasonable notice Courts look at several factors including the length of time you worked for the employer, your age, your position, the likelihood of finding new employment etc.

At the high end, if you were in a managerial position, the Court would likely order one month's notice or pay in lieu of notice for each year of employment. If you were not in a managerial position the Court would order somewhat less.

Expert:  Debra replied 9 months ago.

Is there anything more I can help you with at this point in time?

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