uk patent and trade mark
Remember, the insurance advertisement with the" Good Hands "people. Those were the times when a cup of coffee 50 cents, the milkman delivered and people expected to retire from the same company where they had come from the e-mail space.
But this is the 21st Century, it costs 50 cents, to air in your tires, your doctor answers by voicemail, and your chances for freedom at 65 seem about equal to the provincial lottery to win. The competition is in, fairness, especially for the sick and disabled people. It seems that in this age of rapidly developing trends, a dark side, from the obsession with corporate downsizing, restructuring and competitiveness.
More and more employees who are not able to because of a serious illness, accident or stress find that between their employer and group disability insurer, the race is to show them on the back of the hand and the door.
For many of these people, actual termination of employment is only the latest step in a long, stressful time. The dedicated staff are pushing to the limits of endurance to meet the requirements of their financial responsibility, a sense of teamwork and the ever present a skeptical brow furrowed supervision. The more loyal and diligent staff, sleepless nights, throwing and turning with guilt, always deciding whether the "" come in "" or not, even over the protests of their own medical advisers.
Like any Toronto employment lawyer practicing in the field of employment, after almost 20 years, the development is annoying, and I have had my fair share of horror stories, and a 36-year-old production supervisor with an excellent work record is on his hospital bed suffering with Lupus , job performance warnings left on his empty desk, a woman with breast cancer again 3 months early from her chemotherapy, only to be told the next day, she was the only person ' "new" in a great prosperous society; 8 years of the employee of a large bank, at home on medical stress leave, is on almost every day by the Occupational Health Nurse, when she returned to the team, which it. Finally, the Bank has cut her off from their disability program, with some unwritten policy that they are not allowed, became pregnant, while for people with disabilities. These stories - a man of inhumanity to man, are not unique.
Labor can respond, but in a confused, complex manner. In Ontario, for example, as in many provinces, regardless of whether you are injured on the job or Smitt with work-related diseases is an important determination of whether you can claim from the Worker's Compensation Board or the Company sponsored disability plan . Most of the time, but it's comparable to where execution by slow strangulation, or the firing squad.
For example, if you are unlucky to suffer from a chronic illness such as backache, disability or reactive depression, repetitive strain injury, which ate job related, but with an individual genetic make-up, the employer, employee remuneration of the Executive Board and the insurance often, in a sad game of legal "hot potato". Whether and when the disease is to work, an employer to the dreaded Section 54 of the Worker's Compensation Act. This is good news for employees, while it is no picnic for the workers' salaries of the Board and its faceless e-mail system during the disability, if the individual is deemed medically fit to return to the pre-injury position on light duties or a modified work plan, the employer may not terminate the employee for up to 2 years in the absence of willful misconduct. There are few exceptions and the Worker Compensation Tribunal of its policy rules with a special Enforcement, the levy of a $ 20,000.00 penalty of 12 months salary and a compensation order against the UN co-operative employer. After all, if most employers could refuse to return an injured employee or soon after the fire, workers' Compensation Board would have to provide financial support much longer. Is it any wonder that Section 54 is so hard?
Unfortunately, the legal status of an employee who becomes ill from a non-work injury or illness is far more uncertain.
Most disability insurers set their first obstacle by ensuring that the Group Policy, which most people do not see, without a right to work in conjunction with illness or injury under the policy. Then, in order to qualify for disability benefits the person must, within a specified time from the injury. Finally, Group Policy always take precedence, 2 conditions:
1. The fact that a person is so completely turned off, not in a position, all the usual features of their work for the first 24 months. After this deadline, the rules even stricter. Medical consultants usually have a field day with this definition and what is done months of endless demands for more coherent and better medical information from the sponge-like insurance adjuster. Just as some employees feel that they will run from exhaustion and frustration, as long as proper updated medical reports available to the insurance companies finally cave in. Benefits finally follow, but like everything else, are limited to the specific policy, usually between 60 and 80% of the pre-salary absence, less money from EIC or additional income plans.
2. The fact that a person must have the legal status of an employee during the period of illness or injury. Timing is everything. In most provinces, all the benefits of employment during a period of dismissal or termination of a statutory time limit, with the "Labor Board Rules".
Once these conditions are met, an employer who knowingly terminates an employee just before he would otherwise for disability benefits to avoid premium increases may also be that a car wash with the window open.
The courts have found that in addition to the standard termination wrongful dismissal / compensation claims based on the employee's age, seniority and the type of attitude (about one month per year or more), the employer may be obliged to all insurance benefits a worker would have received during the entire period of disability. The cold foods are served, would be a dollop of sour tightened sanctions and damages.
While such "bull in a china shop" employers still exists, the courts have rarely lead callous, because the risk of pain more pronounced than the nominal gain. In many situations it is possible to make a viable claim for disability benefits at any time during the entire period of notice - unless the insured specifically limits the claim in writing and the restriction was to draw the attention of employees.
However, in the 90-s dirty, many employers seem willing to be in a insidious practice of adjustment of an employee while on disability benefits, or just short-term / long term disability leave. To some, the reasoning is clear - in a time of economic restructuring has thrown someone to get out of the lifeboat. Why do not the employees who have rehabilitated an extended period of light duties or moderated pressure that the employer can not tolerate or afford. The problem is that this trend has affected the gray clouds, which are usually legal netherworlds and employees do not have the tools to respond clearly.
In the now famous case of McKay v. Carrico, the Ontario Court of Appeal stated that the employee could claim both the benefits and severance pay if they are terminated while disabled. This potential for double compensation claim should make it an effective deterrent. However, like any good mousetrap, employers have been consistently and successfully finding ways of skating around the rules of two methods: (a) They say that after a long absence and permanent disability, the task, whether on long-term disability benefit or not, the employee has their employment frustrated by factors beyond the control of the two parties. (b) Many employees who are not their employers are constantly on their medical status during the absence and the likelihood of recovery in written form, are considered abandoned or resigned their employment.
During the withdrawal argument beggars common sense, and is in accordance with the doctrine of frustration is perverse and dangerous - especially because some courts have in certain cases. The idea that an employee may forfeit grant rights accrued interest on long years of service on the basis of a legitimate absence due to illness or injury seems arbitrary, to say the least. Indeed, after the approval by the Company, disability insurer, would not common sense dictate that an employee must work to open, without condition or question to the doctor reports it willing and able to return to work.
Accordingly, as many aspects of employment law, knowledge of one's rights is the best preventive medicine. The courts have consistently said that it is a question of fact in each case, whether the worker permanently and clearly not in a position before the injury functions and responsibilities. Fortunately, the burden of proof on the employer to prove this point. An employee who is trying to come into contact with her employer, in writing, that assumptions used by the employer that the injury permanently and that the job has been abandoned. Medical reports submitted that the question of the timetable for the return to the workplace as opposed to leaving it indefinite. These reports must be submitted with proof of delivery, so that the employer does not have the opportunity to ensure that the termination takes place because it had no knowledge of the person, where, and medical status;
Moreover, as often happens when the employee notifies the employer of his intentions to return to work - and is rejected, that old feeling - the employee must document the request, either by registered letter or fax. This leaves no room for the suggestion that the job was open, but staff did not return to co-operate.
Finally, and above all, the willingness to return to work, only after medical approval, must be coordinated with the disability insurance companies, which are more than willing to "switch off the tap" in the hopes of foisting the responsibility of the employer at the earliest opportunity . Too many people need medical advice and try to return to work before they are ready, only that the door is allocated in their faces by the employer, its long-term disability benefits and has already set their EI sickness benefits were forfeited because of the payroll contribution for more than 104 days.
This is not an enviable situation, to say the least, but one that is all too common in this period of re-structuring, re-organization, budgetary restraints and a glaring lack of remorse and compassion for those of us who rely on their vulnerable .
At the end, it remains for the courts to recognize and stop to this growing trend, and how they in the past, balance the bottom line needs of enterprises Canada with a fair treatment of the hardworking employees who through no fault of their own, have of the illness or injury, and just want the opportunity to get back to work and get on with life. The best practical. Approach for all with this situation, everything from signing to some rest and call your lawyer first in the morning.
Bram A. Lecker, psr LLB. As an experienced employment lawyer in Toronto, Ontario, Canada, is dedicated to the employees concerning their rights in matters of employment, unfair dismissal, constructive dismissal, harassment in the workplace, benefits, employment and severance allowances. Bram has been practicing employment law since 1984 and was on several important judicial decisions relating to rights of workers. Bram's website and other articles, please visit http://www.torontoemploymentlawyer.ca
0 ความคิดเห็น:
แสดงความคิดเห็น