Termination

[Tom Sheahan]

#97078

Forum: Private

I have an employee who has been with our organizaton for 4 months, we extended his probation from 3 months to 6 months. the reason was because he was absent for a number of days during his first 3 months. He had been getting doctors notes, he was suffering from anxiety due to a number of family issues, he couldn’t sleep and thus couldn;t work (he is a truck driver). He is back off for 3 weeks (with doctor note). We have encouraged him to utilize our EAP program. My question, can we terminate this employee when he does finally get a clean bill of health?
Thanks
Tom Sheahan

[Haley O’Halloran]

#97080

This is a delicate situation because it involves both employment law and human rights considerations.

Probationary Employment & Termination

In most provinces, probationary periods give employers some leeway to assess suitability.

Extending probation (as you did, from 3 to 6 months) is allowed if the employment agreement or policy permits it and it’s communicated clearly.

During probation, employers can generally terminate with less notice, provided the termination is not discriminatory and meets minimum employment standards.

Medical Leave and Human Rights Obligations

Because the absences are supported by doctor’s notes and relate to anxiety/mental health, this is considered a disability under Canadian human rights legislation.

Employers have a duty to accommodate disabilities to the point of undue hardship. This means:

You cannot terminate because of the disability or absences tied directly to it, unless you can show undue hardship (e.g., safety, cost, or operational disruption).

Encouraging EAP was a good step—you’re showing support and accommodation.

“Can we terminate once he’s healthy?”

If you wait until he returns with a clean bill of health, you must be careful.

Terminating immediately after recovery may appear as retaliation for his disability-related absences.

Even if technically on probation, this could expose your organization to a human rights complaint.

You would need to demonstrate that the decision is based on non-discriminatory factors (e.g., performance issues unrelated to illness, conduct, operational requirements).

Best Practices & Options

Document everything: Keep records of absences, notes, accommodations offered, and any performance issues.

Assess undue hardship: If the absences seriously undermine operations (especially in safety-sensitive roles like truck driving), you may be closer to demonstrating undue hardship.

Consider alternatives:

Extending probation again if possible.

Offering modified duties or a gradual return-to-work plan.

Consulting an employment lawyer before any termination decision.

Risk Management

If you terminate solely because of health-related absences, you risk a human rights claim.

If you terminate citing clear, well-documented operational concerns (e.g., inability to meet the attendance or reliability standards of a truck driver role despite accommodation), you may have legal footing.

Recommendation: Do not plan to terminate as soon as he gets a clean bill of health. Instead, wait, evaluate his ability to meet job requirements upon return, and only consider termination if ongoing concerns exist despite accommodation. Before acting, I strongly suggest seeking an employment lawyer’s opinion to ensure compliance with your province’s employment and human rights laws.

-HRInsider Staff

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