In earlier posts
here, we discussed attendance management policies. When an
employee is absent for a sufficiently lengthy period, an employer
may eventually rely upon the legal doctrine of
"frustration", and terminate employment. (A similar
concept for union employees is known as "innocent
The doctrine of frustration of contract operates as a complete
defence to wrongful dismissal (breach of contract) claims and human
rights complaints in British Columbia. If an employee is
absent from work for a long enough time due to disability, the law
may recognize that their employment contract is at an end, through
no fault of either party. The employee can simply no longer
work. In determining this, the courts or a human rights
tribunal will ask whether the disability prevents the performance
of the essential functions of the employee's job for a period
of time sufficient to say that, in a practical or business sense,
the object of employment had been "frustrated".
Regular communication with the employee is important during
lengthy absences. Too often, employers do not follow up to
obtain status updates, and after several months decide they want to
take action. Without updated medical advice from the employee
and their physician, there is delay while the employer tries to
determine whether the employee has a prospect of recovery in the
How long an absence does it take before frustration of contract
can be alleged? The answer varies from case to case, and legal
advice should be sought to avoid liability for alleging frustration
when the factors don't meet the high test. The law requires a
careful assessment of the facts of each case.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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