The constitution protects my sovereignty over my health, right? Wrong. Prepare to be vaccinated

Howard Levitt: Why is my place of employment demanding I work in an office when I am fully capable of working remotely? These and other questions answered.

If someone was ordered to get the COVID-19 vaccine and lied about getting it, would that be grounds for dismissal with cause, I was asked recently.

Vaccinations and workers’ privacy and health rights are the new set of questions being asked as we come to the end of this year dominated by the virus and its consequences on companies and staff. It’s clear that if a vaccine was a condition of employment and the employee lied, it would be cause for dismissal. But the employer should also seek proof of the vaccination and they have a right to that proof if that is a term of the employment in question.

Given the range and number of questions I receive, going forward we will have a question-and-answer column on a Saturday every month. Here is a sample of what I received recently.

Q: There is no law to force medical procedures! There is a constitution that protects rights to mobility and sovereignty of an individual including one’s health. Correct?

A: That’s not the case. Employers can require employees, in certain circumstances, to see an independent medical specialist if they are determining an employee’s fitness for accommodated work or if they are genuinely disabled. I suspect the courts will require compulsory vaccinations for certain workers if they want to remain employed.

Q: I was recently terminated from a major Canadian company. More junior employees, with much weaker performance evaluations, were retained. The company advised me that my job was redundant, but I was replaced by someone doing the same thing. What is my recourse?

A: There are many common misconceptions built into your question. Let me break apart a few. The size of your company is irrelevant to your entitlement.

Short of behaving so abysmally, that there is cause for your discharge, the worse performer and the best performer have identical severance entitlements. An employer is entitled legally to make bad business decisions and terminate top performers and retain weak ones. Seniority, outside of a union regime, is totally irrelevant.

Companies can lay off in reverse seniority, in order of seniority or without reference to seniority at all. Finally, employers, within certain boundaries, can lie.

The fact they told you that you were redundant (perhaps to spare your feelings or to assist you with Employment Insurance) does not provide you any additional rights. Although courts have said that employees should be honest and candid with employees upon termination, this is not the type of lie which would beget additional severance.

In short, you are entitled to wrongful dismissal damages but the amount is unrelated to the size of the company, your seniority, your performance or the reason you were actually let go, short of cause. The usual factors in determining your entitlement are your ability to be employed again, age, position, annual earnings and length of service. But there are over 150 other factors referred to in my book The Law of Dismissal in Canada, any of which might apply to your case.

You can look at a severance pay calculator to get a starting point, but it is only that and must not be relied upon. You would have to tell your entire story to an employment lawyer to see if any of those additional 150-plus factors will operate to provide you additional severance. Almost none of those factors will decrease your basic entitlement.

Q: How is age a factor in severance pay?

A: The courts look at more than 150 factors, which may or may not apply to any particular case. But the factors which always apply are age, position, length of service and annual total earnings. Re-employability is also a major factor and age impacts upon that. A 50-year-old will be provided greater wrongful dismissal damages than a 35-year-old because the courts perceive it to be more difficult for an older person to find alternative employment.

Separately, if a person can prove that age was a factor in their dismissal, they would have a human rights claim against the employer and could even obtain an order that they be reinstated into that job. The courts recognize that older employees are discriminated against and can award greater wrongful dismissal damages accordingly.

Q: Can I change my mind after I have resigned, and go back to work?

A: The courts provide a cooling off period when employees resign in the heat of the moment. There is no specified time so my best advice is to attempt to rescind your resignation as soon as possible. Generally, if the employer has accepted the resignation and taken action based upon it, i.e. hired someone to replace the employee, the employee will be unable to retract their resignation. Therefore, my advice to employers, who do not wish the employee to return, is to do just that.

Q: If an employee tests positive for COVID-19, does the employer have an obligation to tell other employees who might have been in close contact? The employer is stating confidentiality for not informing other staff.

A: They do and not doing so could make them liable for a very expensive negligence action if another employee contracts COVID-19 and had not been warned.

Q:Even though I work in an essential-service office, we have the capability to work from home. Does my employer have an obligation to let us work from home as there really is no reason to be in the office?

A: No, it is entirely up to the employer whether they call you back to the workplace. Productivity is irrelevant to that right.

Q: Why is my place of employment demanding I work in an office when I am fully capable of working remotely?

A: The employer has every right to require employees to return to work when they have been sent home for the pandemic. It’s of no consequence that the employee prefers to work from home (many do) and it similarly would be of no consequence even if the employee could prove that they can work more productively from home.

Q: Should reference letters be asked for in any negotiated severance?

A: Usually one asks for one at the beginning of a case and, if the employer refuses, the court can ultimately increase the amount awarded, in part because it impacts on the employee’s re-employability and, in part — judges being people too — because they are upset with that employer.

If there are other forms of bad treatment, it can also be a factor in awarding punitive or other damages against that employer. But whether it should be asked for in a mediation or other negotiated settlement, depends upon the needs of a particular client. Often, if an employee requests a reference, the employer will think that the employee considers it to be of value and trade it off against severance in the negotiations, believing that that employee will take less severance because the reference is of such value.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com. Questions are edited for clarity and space.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.