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
|Canadian Employment Law Today|Last Updated: 05/24/2017

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 a 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.

There are few questions which create as big a headache for employers as when, and how, to safely terminate 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 conscience as well as the worry of being sued by the employee.

The cost of wrongfully terminating the employment of a disabled employee is exponentially greater than for wrongfully terminating someone who is able-bodied. If an employer wrongfully terminates the employment of a disabled employee, a court or tribunal may publicly declare the organization to have committed a breach of the applicable human rights legislation and may order reinstatement of that disabled employee to her job. The 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.