This is tricky. First and foremost, I can’t tell or even advise you what to do because that would amount to providing legal counsel and I’m not allowed to do that. The only thing I can suggest you do is talk to a lawyer who can advise you.
Having said that, I can offer some general comments that can help you.
1. You can’t terminate the employee if he/she is on leave required under the BC Employment Standards Act–unless it’s part of a larger corp reorg, which isn’t the case in your situation.
2. Is the employment probationary? If so, you may be entitled to terminate for lack of a suitability if he/she returns, provided that the 3 months’ probationary period has passed.
3. Does the employment contract or offer specify that material misrepresentations made by the employee during the hiring process is grounds for termination? If so, you may have a case for termination with cause, depending on the language and situation.
4. Another potential grounds for termination is frustration of purpose, i.e., the argument that the physical condition makes it impossible for the employee to perform the position and justifies termination. But frustration is tricky business and you need to talk to a lawyer.
5. Be extra sure to document what you’ve done to accommodate the employee so far, including the alternate work you offered and his/her refusal to accept it.
Bottom Line: This is tough, but it sounds like the employee is not acting in good faith. So, you need to weigh the risks and benefits. Is keeping him/her on the payroll through all these leaves hurting your organization? How? And how much? Is it worth trying to make a settlement and buy the employee out? These are all questions I can’t possibly answer. That’s why you need to talk to a lawyer so you can assess your termination options and their risks and make an informed decision. Good luck and I hope this proves of some help. Glenn
