Developments in technology Industry is driven, in part, by developments in technology — construction is no exception. Technology in the construction industry brings about positive change — cost effectiveness, increased efficiency and safer projects. However, technology also means new concepts, new products and new processes, all of which bring about new legal risk. The Canadian […]read more
When Can A Disabled Employee Be Terminated?
Employers often struggle with balancing their obligation to accommodate disabled employees and determining when the employment relationship has become “frustrated” in that a disabled employee is no longer capable of performing his or her job. A recent decision of the Ontario Human Rights Tribunal offers some clarity on this issue.
In Gahagan v. James Campbell Inc., 2014 HRTO 14, the employer operated a number of McDonald’s restaurants, one of which employed the complainant, Gahagan. In 2009, Gahagan suffered a workplace injury and was placed off work. Gahagan remained off work for two and a half years. During that time, Gahagan applied for, and received, workers compensation benefits, long-term disability benefits, CPP disability benefits. Gahagan never returned to work. In 2011, her employment was terminated on the basis of frustration of contract. Gahagan filed a human rights complaint alleging she had been terminated as a result of her disability. The Human Rights Tribunal held that:
- Gahagan had significant permanent physical restrictions and limitations;
- In order to receive long-term disability benefits and CPP disability benefits, Gahagan had professed an inability to perform her job and a severe and prolonged disability.
The Tribunal concluded that the employer was unable to accommodate Gahagan and therefore a return to work was not possible. The termination was upheld.
This case illustrates that employers may terminate a permanently disabled employee, without violating human rights legislation, so long as the employer is able to demonstrate that the employee’s disability and/or medical restrictions are severe and prolonged and that the employer is unable to accommodate the employee.