Canadian Employment Law Today - sample

Walking a fine line with terminations When can an employer safely terminate an employee who is on disability leave without breaking the law? BY ALAN RIDDELL AND KYLE VAN SCHIE T here are few questions which cre- ate as big a headache for employers as when, and how, to safely termin- ate the employment of an employee who is either still on disability leave, or who has just returned from such leave. For many, this question raises difficult issues of con - science as well as the worry of being sued by the employee. e cost of wrongfully terminating the employment of a disabled employee is ex - ponentially greater than for wrongfully terminating someone who is able-bodied. If an employer wrongfully terminates the em- ployment of a disabled employee, a court or tribunal may publicly declare the organiza- tion to have committed a breach of the appli- cable human rights legislation and may or- der reinstatement of that disabled employee to her job. e employer may also have to pay both damages for breach of the employee's human rights and back pay running all the way back to the day of termination — a sum which can easily run into the six figures — over $600,000 in the 2016 Ontario Court of Appeal decision in Hamilton-Wentworth District School Board v. Fair, for example. e general legal prohibition In Ontario, for example, the province's Hu - man Rights Code prohibits employers from terminating sick or disabled employees, ex- cept in very limited circumstances. Not only is it illegal to terminate an employee because of sickness or disability, but also because of any extended absence from work or prob - lems in her work performance which arise directly or indirectly from that sickness or disability. In practice, this means an employer nor - mally cannot terminate someone's employ- ment because the employee: • Is away from work due to a disability or seri- ous illness • Has been performing poorly at work due to a disability or illness • Historically has a poor attendance record due to a disability or illness. Even if the termination of the disabled employee's employment was principally for legitimate business reasons, a court is none - theless legally obliged to set aside the termi- nation as contrary to the code if the employ- ee's poor performance or attendance record, arising from the disability, played any role whatsoever in the decision to terminate, no matter how minor. Legally terminating a sick or disabled employee In Ontario, there are only four limited sit - uations where the law permits an employer to terminate the employment of a sick or dis- abled employee. e termination has nothing to do with absenteeism or disability-related work performance. Employers can terminate the employment of a sick or disabled employee if the reasons for doing so are totally unrelated to the employee's disability-related absence from work or to work performance problems arising from her illness or disability. When terminating the employment of someone who has a disability or serious ill - ness, there is a rebuttable presumption that the disability or illness played at least a mi- nor role, directly or indirectly, in the termi- nation decision. at said, if the employee is part of a group of several able-bodied employees who are all being laid off, then the fact that she happens to be sick or disabled would not necessarily prevent the layoff, given that the probability of such layoff being found to be for reasons that are wholly unrelated to his disability or illness. e employee's illness or medical con - dition is not a recognized disability. e code only precludes employers from ter- minating someone's employment due to problems arising from a "disability." Under the code, not all illnesses or medical con- ditions are serious enough to amount to a recognized "disability" and accordingly an employer may terminate the employment of any employee whose sickness is not recog - nized as such. Generally speaking, the code does not recognize as a disability any illness which is both temporary in nature and common place. For example, the flu, the common cold, gastroenteritis, sinusitis and many types of mild allergies are not recognized disabilities protected under the code. As a result, em - ployers may lawfully terminate an employee for absenteeism or performance problems arising from any one of these relatively com- mon, and transitory, medical conditions. e employment contract is 'frus- trated' by the employee's sickness or dis- ability. An employer can also terminate an employee where that employee's illness is of such a serious and permanent nature that it will likely prevent her from ever carrying out the principal duties of her job. In such situa - tions, the contract of employment with that disabled employee is deemed to have been legally "frustrated." Subsection 17(1) of the code expressly permits employers to termi - nate the employment of any person who "is incapable of performing or fulfilling the es- sential duties or requirements" of her job. ere are two conditions for the employ- ee's employment contract to be frustrated by sickness or disability: •Where the sickness or disability is suffi- ciently permanent that the employment contract is frustrated. Contrary to popular belief, an employment contract will not be deemed to be frustrated simply because the employee has been absent from work for several years. In Naccarato v. Costco, the court ruled that an employee's contin - ued absence from work for five consecu- tive years was not sufficient to justify his termination on the grounds of frustration of contract. Instead, the court stated that an employment contract can only be said to be frustrated if there is evidence that shows that there is little likelihood of the employee ever being able to return to work within the foreseeable future. In Yeager v. R.J. Hastings Agencies Ltd., the court articulated several considerations HUMAN RIGHTS legislation across Canada makes it clear that disability is a protected ground from discrimination. This means that employers can`t use a disability as a reason for dismissing an employee. However, it isn`t impossible to end the employment relationship in such circumstances. Employment lawyers Alan Riddell and Kyle Van Schie explain when exactly a disabled employee can be sent packing. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: HUMAN RIGHTS BACKGROUND

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