The contract law doctrine of frustration may provide employers
with a solution to the problem of the long-term or serially
disabled employee who is seldom at work, or entirely absent, for
years at a time. The Human Rights Tribunal of Ontario's recent
decision in Gahagan v. James Campbell Inc. stands for the principle
that terminating the employment of a permanently disabled employee
by reason of frustration does not necessarily constitute unlawful
In Gahagan v. James Campbell Inc., the employee sustained a
workplace injury in 2009. The employee's significant physical
restrictions and limitations prevented her from returning to work.
Instead, the employee received workplace safety and insurance
benefits, long term disability (LTD) benefits and Canada Pension
Plan (CPP) disability benefits. When the employer terminated her
employment 2 1/2 years after the injury, the employee alleged
unlawful discrimination on the basis of disability.
The Tribunal concluded that the employee's employment had
been frustrated and dismissed her complaint. The Tribunal relied on
the facts that:
1. the employee had significant physical restrictions and
limitations which prevented her from working; and
2. in order to receive LTD and CPP disability benefits, the
employee herself had professed both an inability to perform her job
and a severe and prolonged disability.
The period of time over which any individual employee's
contract of employment has become frustrated will, of course,
depend on the specific facts of the case. However, the
Tribunal's finding that frustration may result after 2 1/2
years of disability may be encouraging to employers who have been
managing lengthy employee absences.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).