When Can A Disabled Employee Be Terminated?

March 11, 2014

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:

  1. Gahagan had significant permanent physical restrictions and limitations;
  2. 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.

Related Articles

Breaking Glass Ceilings – Federal Pay Equity Legislation Seeks Equal Pay for Equal Value

On September 10, 2019, the federal government announced the appointment of the first ever federal Pay Equity Commissioner. The Pay Equity Commissioner’s role is to provide leadership and direction for the administration and enforcement of the new federal Pay Equity Act (the “Act”). The Act establishes a new pay equity regime which is aimed at reducing gender based pay discrimination by ensuring all federally regulated employers take proactive steps to ensure they are providing equal pay for equal value.

read more

Atlantic pilot program fast track to East Coast immigration

The Atlantic Immigration Pilot Program (AIPP) offers a fast route for employers wishing to hire immigrants and for people wishing to immigrate to Atlantic Canada. The AIPP has recently been extended until December 2021. The AIPP is an employer-driven program that allows Atlantic Canadian employers looking to fill labour gaps with applicants who meet their […]

read more
view all
Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.