Worker’s extended sick leave wasn’t permanent, court rules

Employee went on disability for a year but indicated intention to return

A worker’s extended absence from work did not breach her employment contract and her employer did not have just cause to dismiss her, the Nova Scotia Court of Appeal has ruled.

Terry Ann Wilmot, 38, was an administrative assistant for Ulnooweg Development Group Incorporated, a lender and consultant company for aboriginal businesses based in Truro, N.S. During her 12 years of employment with Ulnooweg, she was considered to be a good, hard-working employee who made a significant contribution to the business and had never been disciplined for any misconduct.

In May 2002, Wilmot began taking long absences from work due to emotional problems. She was able to use accumulated sick leave credits until April 2003 and took an unpaid leave of absence after that. She had an agreement with the company that she would inform it in June 2003 when she expected to return to work.

On June 3, 2003, Ulnooweg sent Wilmot a letter indicating its concerns about her health and ability to fulfill her duties with the company and that her attendance needed to improve or she would be let go. This was followed by a letter of termination on June 26, 2003, which stated Ulnooweg was “prepared to allow you time to recover from your illness and re-enter the workforce” but it “cannot wait for an indefinite period of time.” The termination letter concluded that because she hadn’t provided a projected recovery time, she was being terminated.

A few days after the termination letter was sent, Wilmot’s doctor completed a long-term disability application stating she needed to be off for a year.

In the original trial, the judge noted “an employer cannot dismiss an employee for temporary absence due to illness” and awarded Wilmot $33,000 in damages for wrongful dismissal.

In Ulnooweg’s appeal, the Nova Scotia Court of Appeal agreed with the trial judge’s decision. It found Ulnooweg could not assume Wilmot wouldn’t ever return to work under the circumstances. She had discussed an eventual return to work and although she hadn’t supplied an exact return-to-work plan by June 2003, it was reasonable to think one was in the works, which became evident when the long-term disability application was filed.

“An approximately one-year long absence from her employment did not constitute a permanent disability,” the court said. “Further, one year is not outside an acceptable range of time for such an absence in the circumstances of this case.”

The court upheld the trial judge’s decision and the damages award. See Wilmot v. Ulnooweg Development Group Inc., 2007 CarswellNS 183 (N.S. C.A.).

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