Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | February 17, 2016 with Meghan McCreary Ask an Expert Answer: Just because an employee is on a medical leave and receiving disability benefi ts does not mean that the employer is barred from contacting the employee or has no obligations in respect of the employee. On the contrary, the duty to accommodate an employee continues to exist while an em- ployee is on medical leave, even if the em- ployee is receiving disability benefi ts from an outside insurer. As a result, in order to meet its duty to accommodate, an employer may need to contact an employee who is on leave in order to obtain information respecting the employee's ability to return to work and any accommodations that are reasonably possible. While employers may rely on a third-party insurer's assessment of an employee's fi tness to work in assessing the employer's duty to accommodate, they do so at their own peril. If a third-party insurer is wrong about its as- sessment of an employee's fi tness to work and any accommodations the employee may or may not require, the employer will ulti- mately be liable for any damages which arise as a result of a failure to accommodate. For example, if an employee brings a hu- man rights complaint or grievance alleging that the employer failed to accommodate him, and the employer relies on information from the third-party insurer which supports that the employee was not disabled, or did not require an accommodation, the em- ployer will be responsible for the failure to accommodate if the tribunal comes to con- clusion that diff ers from the insurer's. Be- cause of this, it is advisable for employers to keep in reasonable contact with employees on medical leave to allow them to indepen- dently assess (with assistance from medical professionals where required) whether and when they can return from work, and any ac- commodations they may require. Employers are entitled to ask for reasonable medical in- formation from an employee to support an absence from work or to determine fi tness at work, even if the employee has a disability claim being administered by a third-party insurer. So while an employer can and is en- titled to rely on the insurer to do the work of managing an employee on medical leave, it must bear the consequences of the insurer's decisions. Knowing this, employers may want to make decisions based on their own assessments and knowledge of their work- places. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com After-acquired cause for dismissal Question: When can or can't after-acquired cause be used to reduce notice obligations? Answer: An employer may dismiss an em- ployee without just cause for any non-dis- criminatory reason, as long as it provides reasonable notice of the dismissal, or pay in lieu of notice. Sometimes a situation arises where an employer has dismissed an em- ployee without cause, but then discovers after the dismissal that there was actually just cause to terminate the employment re- lationship. e doctrine of "near cause," which years ago was relied upon by employers to reduce notice obligations upon dismissal, is no lon- ger accepted by Canadian courts. It's now "all or nothing:" the employer either has just cause and no obligation to give notice of dismissal, or it does not have cause and must honour its notice obligations. As such, if "after-acquired cause" is discovered after dismissal, it may be relied upon to entirely extinguish the requirement to provide no- tice or pay in lieu of notice, but it cannot be used to reduce notice obligations. e British Columbia Court of Appeal's decision in Carr v. Fama Holdings is gener- ally regarded as a leading authority on the concept of after-acquired cause. In Carr, the court confi rmed that an employer can wrongfully dismiss an employee and yet have its actions saved if it later discovers conduct which took place during the term of employment which would have justifi ed dismissal for cause. An employer may add new grounds to justify dismissal for cause (meaning there is no requirement to give notice of dismissal) where those grounds existed at the time of dismissal but had not yet come to the em- ployer's attention. However, if the employer was aware of the new grounds at the time of dismissal but did not rely on them, the em- ployer will likely be considered to have con- doned the employee's misconduct: see Lake Ontario Portland Cement Co. Ltd. v. Groner. Finally, it is important to remember that the obligation of good faith in the manner of dismissal imposes a behavioural require- ment on employers to investigate allegations of misconduct and give employees the op- portunity to respond. e obligation also requires employers not to fabricate grounds for cause or maintain unfounded allegations of cause. As a result, where an employer legitimately discovers after an employee's termination that the employee engaged in misconduct suffi cient to justify cause for dismissal, the employer can rely on that mis- conduct to extinguish its notice obligations. However, employers should be cautious not to manufacture illegitimate grounds for dis- missal after the fact just to avoid a severance obligation as damages will likely fl ow from that type of "bad faith" conduct. For more information see: • Carr v. Fama Holdings Ltd., 1989 Car- swellBC 187 (B.C.C.A.). • Lake Ontario Portland Cement Co. v. Groner, 1961 CarswellOnt 70 (S.C.C.). Meghan McCreary is a partner practicing la- bour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347-8463 or mmcreary@ mlt.com. Contact with employee on medical leave Question: If an employer has a third-party provider of short and long-term disability benefits, does it have any legal obligations or right to contact the employee once the employee is on leave, or should everything go through the third-party insurer? While employers may rely on a third-party insurer's assessment in determining duty to accommodate, they do so at their own peril Meghan McCreary Ask an Expert Contact with employee on medical leave Question: and long-term disability benefits, does it have any legal obligations or right to contact the employee once the employee is on leave, or should everything go through the third-party insurer? MacPHERSON LESLIE & TYERMAN LLP REGINA If the employer was aware of the new grounds at the time of dismissal but didn't rely on them, it will be considered condonation.

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