What Is “Absolute Liability”? Absolute liability is the obligation of an insurer to indemnify an innocent third party who was injured by an insured, while the insured was in violation of the insurance policy. Under the absolute liability provision of the Insurance Act, RSNB 1973, c I-12, [the ‘Act’], the insurer may deny coverage to […]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.