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Disability leaves happen and the reality is that they are difficult to manage, both for employees and employers. Unfortunately, communication often breaks down in these situations and it then becomes hard to have a smooth transition while on leave and subsequent return to work. 

Disability leaves can become particularly difficult when it is not clear if/when an employee will be able to return to work in the future. A recent Ontario court decision (Katz et al. v. Clarke) provides some useful insight into situations in which it is not clear whether an employee will ever be able to return to work. 

The case involved an employee who was off on disability leave for 5 years (from 2008 to 2013). Following the 5 years of absence, a doctor confirmed that the employee did not have any reasonable prospective of being able to perform the essential duties of the job they performed before going on disability leave.

The employer responded by informing the employee that their employment would be terminated because of frustration of contract (since, without anyone’s fault, the contract was impossible to perform). Before taking any further steps, the employer asked the employee to provide an updated medical, a request which was not responded to by the employee. 

The employer subsequently terminated the employee’s employment without compensation other than the minimum amounts prescribed under the Employment Standards Act, 2000 (as this is required even in the event of a frustration of employment). 

The employee responded by bringing a civil claim, stating that he was entitled to compensation for wrongful dismissal and for human rights discrimination based on disability. 

The court refused the employee’s claim, stating that the employer was right to consider the employee’s employment as frustrated since it appeared that the disability would prevent the employee from carrying out their role for the foreseeable future. 

Specifically, the court confirmed that where a contract is frustrated, the employer is released from its duty to provide notice of termination (or pay in lieu) and the employee is not entitled to any compensation other any basic amounts required for under employment standards legislation. 

The court also confirmed that an employer’s responsibility to support a disability leave only applies if there is no frustration of contract. In other words, an employer is not required to take more steps to assist an employee who is disabled if it does not appear that the employee will be in a position to return to perform the essential duties of their pre-disability role. 

What can I do to support my employment while on a disability leave?

This case is a helpful reminder that employees must be sure to clearly communicate with employers while they are on disability leave. They should specifically always be sure to keep their employers informed of their status and their potential return to work. 

A lack of communication and/or a lack of commitment to the accommodation process can result in a finding that the employer has done enough and that an employee is not entitled to compensation for termination of employment.  If you believe you have  been wrongfully dismissed or subject to discrimination in relation to your employment and would like to consult with a qualified employment lawyer to better understand your rights and obligations, please contact Sultan Lawyers by telephone at 416-214-5111 or by email at mlahert@sultanlawyers.com


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