In an earlier post
here, we spoke about the possibility of alleging frustration of
contract when an employee is absent for a lengthy period due to
illness or disability. The doctrine was also recently relied
upon outside the disability context to terminate an employee whose
criminal conviction prevented him from obtaining the necessary
license to continue working as a security guard.
Cowie v. Great Blue Heron Charity Casino is an Ontario case
where the employee worked as a security officer in a casino from
2000. In 2007, Ontario enacted legislation requiring a
security guard in a casino to hold a licence. A "clean
criminal record" is needed to obtain the licence. Cowie
did not have a clean criminal record and he was
terminated. The employer said the employment contract was
"frustrated" because it could not be performed due to an
unexpected event that neither party anticipated.
The facts then took an interesting turn. It appeared at the
time of termination that it would take one or two years for Cowie
to get a pardon of his criminal conviction and then get the
required licence. In fact, he was able to get the pardon and
licence in much less time and argued that the employer should have
waited before terminating his employment.
The court sided with the employer and assessed the situation at
the time of termination. It held that an employment contract
is immediately frustrated when the employee can no longer legally
provide the service required.
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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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