Medical Disability and Termination Claims

Written on behalf of Peter McSherry
man with amputated leg working with medical professional to help with disability
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The issue of a medical issue and termination is regrettably complicated. It is clear that an employer cannot terminate due to the disability as this will be seen as a human rights violation and expose the company to serious liability.

The employer also has a duty to accommodate the medical disability to allow for a gradual return to work or other means of accommodating the medical limitations.

There may even be a claim against the employer for lost disability insurance benefits, which were canceled due to the termination of employment.

Terminated While Disabled

A recent case[1] reviewed another related issue. In this instance, the employee was given advance notice of his termination while he suffered from a disability and was on an unpaid leave of absence.

There was no issue of adverse treatment as the company was closing its business and had given all of its workforce the same notice of termination.

The company had argued that the employee could have no claim for lost income in the notice period as he was medically unable to work in this time period which ran for approximately 6 months.

At first blush, this would seem to be an attractive argument. Why should the employee be entitled to a claim for lost earnings in this time period as he was medically unable to work and in fact on an unpaid medical leave?

Supreme Court Precedent

The result turned on the reading of a Supreme Court of Canada decision[2] which had concluded that an employee’s ability to work was irrelevant to the claim for severance. As odd as this may appear to be, this was indeed the result of this case. The end result is that an employer cannot give “working notice” to an employee who is incapable of working.

For this reason, the employee successfully recovered his “lost” wages for this time period, even though he could not work.

The Law May be Confusing

This case illustrates quite well the principle that logic may not be the right guideline to apply when considering your claim on termination.

Other Issues Yet

Had this company showed a payroll of over $2.5 million, the employee also would have recovered a statutory severance payment of one week per year, which in this case, would have been a further 20 weeks’ pay.

To make matters more complicated, had the employee been in receipt of disability insurance benefits while disabled, it is likely he could also receive the same termination compensation without offset.

Let Advice Be Your Guide

Clearly these issues are complex and the answer is not intuitive. If you are facing treatment while disabled, get legal advice and learn of your rights.

Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation




[1] McLeod v 1274458. The decision was unsuccessfully appealed by the employer but the issue addressed presently was not the subject of the appeal.

[2] Sylvester v BC