When an employee needs to access long term disability benefits
("LTD"), employers should be mindful of the various
pitfalls that can arise in trying to successfully manage innocent
absenteeism. The employment relationship must be carefully managed
to maintain contact with the absent employee; obtain updated
medical; and, to ensure the employee maintains their benefit
contributions. CCPartners encourages employers to seek advice as
soon as possible during this process as it is important to
proactively address concerns and challenges as they arise.
Typically, an employer's main concern when an employee is
away on a long term absence is when or if the employee will return
to work. Traditionally, arbitrators and the courts have allowed
employers to claim frustration of contract and terminate the
employment relationship when an employee's innocent absenteeism
is excessive and there is no reasonable prospect of return in the
foreseeable future. There must be no reasonable prospect of return
to either the employee's regular job or an accommodated
position. Frustration has generally not attracted human rights
breaches as long as there is no reasonable accommodation that could
result in the employee returning to work. However, a recent BC
arbitration decision, Langley Township v Canadian Union of Public Employees
Local 403 (McPhillips), has created a wrinkle in
In Langley, Arbitrator McPhillips ordered the employer
to reinstate three employees that it had discharged for innocent
absenteeism. Each of the employees in dispute was off on LTD and
was found to be totally disabled from any occupation. The employer
was able to clearly demonstrate that the level of absenteeism was
excessive and there was no prospect of return to work in the
foreseeable future. As a result the employer considered the cost of
continuing the employees' other benefits (such as dental,
extended health and life insurance) and found that discharges would
result in a net savings of $10,000. The terminations went
ahead as the employer believed the contracts to be frustrated.
At arbitration the decision to end the employment relationship
was challenged as being arbitrary and discriminatory. The employer
conceded (rightfully so) that there was prima facie
discrimination as the employees were terminated because of their
disabilities; but, it defended the terminations by claiming a
bona fide occupational requirement. The Arbitrator
rejected this position as the employer lacked a policy outlining
when a discharge would occur for innocent absenteeism and the
decision to discharge was based on a desire to save money. The
Arbitrator relied on the fact that there was no change in status or
frustrating event that prompted the employer to proceed with the
terminations. Instead it was found that the decision was made
arbitrarily at a random point in time. It is our view
that the arbitrator failed to consider that the disability itself
was the frustrating event which was supported by the medical
documentation that confirmed the employees were totally disabled
and would not be able to return to work in any capacity in the
Employers should keep this decision in mind when managing an
employee who is absent on LTD. Employers would be advised to
consider what event has triggered the decision to discharge. It may
assist employers to develop a policy outlining how they will
approach innocent absenteeism. The lawyers at CCPartners are experienced in
managing innocent absenteeism and can assist you with this
This decision is currently being appealed to the British
Columbia Court of Appeal and the matter will be heard on September
14 and 15 2016. We will continue to monitor this decision and
update you on the Court's decision once it is available.
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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