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When Can You Terminate An Employee On A Lengthy Absence Due To Disability?

Can you fire an employee who has been away from work for a lengthy period of time due to an illness or disability? If so, when? These are difficult questions many employers face when managing lengthy absences.

Sometimes employers may look to the doctrine of frustration of contract. When a contract is frustrated, then the employer can terminate the employee without providing any common law notice or pay in lieu of notice.

The decision to dismiss an employee due to frustration is fraught with risk. Not only will an employer owe common law severance if a court decides that the contract is not, in fact, frustrated, but could also face a claim that it has breached an employee's human rights by failing to accommodate their disability.

Last month, the Human Rights Tribunal of Ontario found an employer did not discriminate against an employee who was fired because of frustration of contract after missing two and a half years of work due to an injury.

In Gahagan v. James Campbell Inc., the ...

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