Canadian Employment Law Today

when assessing whether frustration of con- tract really exists: o e length of time that the employee has been employed o Whether the employment was of tempo- rary or permanent nature o e length of time that the employee has been absent o Whether the employee's job can be tem- porarily fi lled by someone else o e likelihood of the employee recovering from his disability. •When the employee is unable to carry out her essential job duties. Even if the employee is able to return to work, the employment contract can be frustrated when she can no longer permanently carry out the "essential" duties of the position, due to her disability. While employers have a legal duty to ac- commodate disabled employees by reliev- ing them of their core duties on a temporary basis, and by providing them with modifi ed duties on a permanent basis, their duty to ac- commodate does not extend to permanently relieving disabled employees of the core du- ties of their job. Once it becomes clear that the disabled employee is permanently unable to discharge the essential duties of her position, the em- ployment contract is deemed to be frustrat- ed. e employee's disability or illness is causing genuine 'undue hardship.' Even where an employee's sickness or disability does not permanently prevent her from car- rying out the essential duties of her position, her employment may nonetheless be termi- nated where her disability-related perfor- mance problems, or continued absence on sick/disability leave, would cause the em- ployer "undue hardship." In practice, it is extremely diffi cult for em- ployers to terminate an employee on the basis of undue hardship. Proof of some hardship is not suffi cient; rather what is required is evi- dence that the hardship is so great that it has become unsustainable. As stated by various courts and tribunals, business inconvenience, reduction in em- ployee morale and customer preference will never be suffi ciently "undue" to justify the termination of someone's employment. Ac- cording to the Ontario Human Rights Com- mission, signifi cant fi nancial costs to the em- ployer will only amount to "undue hardship" if they are "so substantial that they would alter the essential nature of the enterprise, or so signifi cant that they would substantially aff ect its viability." Precautions before terminating a sick or disabled employee ere are two essential precautions which all employers should take before attempting to terminate the employment of a sick or dis- abled employee: Don't terminate the employee until some eff ort has been made to investigate and then accommodate the disability. Employers should never try to terminate the employment of a sick or disabled employee unless and until there has been some eff ort to investigate and accommodate her illness or disability. is is because, pursuant to the code, it is illegal to terminate a sick or dis- abled employee unless and until the employ- er has unsuccessfully tried to accommodate that illness or disability to the point of undue hardship. As stated by the Ontario Divisional Court in ADGA v. Lane, an employer cannot be said to have unsuccessfully tried to ac- commodate the illness or disability if it has not made any accommodation eff orts at all. Don't terminate the employee without gathering the necessary evidence of her future inability to work, or of your own undue hardship. A court or tribunal will de- clare the termination of a disabled employee to be unlawful unless the employer has either medical evidence that she is unlikely to re- turn to work at any point in the foreseeable future or objective evidence that further at- tempts to accommodate her will likely be unsuccessful or will cause the organization undue hardship. As stated by the Ontario Superior Court in Naccarato, the onus of proof is on the em- ployer to produce medical evidence that the employee's inability to return to work has frustrated the employment contract. Fur- thermore, courts have repeatedly stated that an employer must have evidence of undue hardship that is objective, real, direct, and quantifi able, as a subjective belief of undue hardship will not suffi ce. In view of the serious consequences of il- legally and prematurely terminating employ- ees who are sick or disabled, prudent employ- ers would be wise to proceed with extreme caution whenever attempting to terminate such employees. For more information see: •Hamilton-Wentworth District School Board v. Fair, 2016 CarswellOnt 8904 (Ont. C.A.). •Naccarato v. Costco Wholesale Canada Ltd., 2010 CarswellOnt 4108 (Ont. S.C.J.). •Yeager v. R.J. Hastings Agencies Ltd. 1984 CarswellBC 768 (B.C. S.C.). • Lane v. Adga Group Consultants Inc., 2008 CarswellOnt 4677 (Ont. Div. Ct.). Canadian HR Reporter, a Thomson Reuters business 2017 May 24, 2017 | Canadian Employment Law Today CREDIT: NUM_SKYMAN/SHUTTERSTOCK ABOUT THE AUTHORS Alan Riddell and Kyle Van Schie Alan Riddell and Kyle Van Schie are Ottawa lawyers who specialize in labour and employment law and who work at the law fi rm of Soloway Wright LLP. Allen can be reached at (613) 782-3235 or riddella@solowaywright.com. Kyle can be reached at (613) 782-3211 or kvanshie@solowaywright.com.

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