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Posted by Jean-Alexandre Savard, Attorney with Stein Monast L.L.P., juillet 3 2019
Disability Cases
Dismissal in a Disability Situation: What Employers Must Know

disability-dismissal

Managing absences and disability cases can be quite challenging for employers. When employees are unable to work on a regular and continuous basis as a result of health issues (disability, sickness, handicap, etc.), employers can terminate the employment contract between them.

Although this right is recognized, it must be exercised in accordance with the legislation and jurisprudential principles. In this article, we discuss the topic of dismissal for excessive absenteeism in a non-unionized workplace.

Rights and Obligations of Employees

Certain provisions of the Labour Standards Act (the “LSA”) grant employees the right to be absent from work for various reasons. Section 79.1 of the LSA stipulates that an employee with three months of continuous service may be absent for a period of not more than 26 weeks over a period of 12 months owing to sickness, an organ or tissue donation for transplant, an accident, domestic violence or sexual violence. If the absence results from a criminal offence, the authorized period of absence can extend to not more than 104 weeks.

Moreover, Section 79.4 of the LSA stipulates that at the end of such period of absence, the employer must reinstate the employee in his former position. However, these provisions do not prevent an employer from dismissing, suspending or transferring an employee for absenteeism reasons.

Indeed, Section 2085 of the Civil Code of Quebec defines the contract of employment as “a contract by which a person, the employee, undertakes, for a limited time and for remuneration, to do work under the direction or control of another person, the employer”. The employer is therefore entitled to expect that the employee will work on a regular and continuous basis.

Employee Recourse

Employees who believe they have been the victim of a sanction (dismissal, suspension, transfer or other discrimination or reprisals) for having exercised the right contemplated in Section 79.1 of the LSA may file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail under Section 123 of the LSA.

Employees who are absent for more than 26 weeks over a period of 12 months are not protected under Section 79.1 of the LSA, but they can nevertheless file a complaint for dismissal without good and sufficient cause (Section 124 of the LSA) if they are credited with two years of uninterrupted service for the employer.

Burden of Proof for Employers

An absence owing to sickness for more than 26 weeks over one year is not necessarily a good and sufficient cause for dismissal. In fact, when absenteeism is the result of a handicap within the meaning of the Charter of Human Rights and Freedoms, an employer who wishes to terminate the employment relationship with an employee who is disabled, sick or handicapped is required to demonstrate the existence of the following elements:

  • The excessive nature of the employee’s absenteeism: the employer must establish the frequency of the employee’s absences. For example, the employer could demonstrate that the employee’s absence rate is significantly higher than the rate of the other company employees, over a period of several years.
  • The employee will be unable to work on a regular and continuous basis for the foreseeable future: this demonstration usually requires medical evidence. However, when the causes of the employee’s absenteeism are many and varied, case law has determined that the employee may carry the burden of proving his/her ability to work on a regular and a continuous basis in the future.
  • The employee has been advised of the possible consequences of his/her excessive absenteeism: such notification in the form of a letter is usually part of an absenteeism management program. This is not a disciplinary measure, but rather a purely administrative procedure.

Additionally, employers must prove that they met their duty to accommodate the employee without undue hardship. Thus, they must take reasonable action to accommodate the employee, insofar as they do not suffer undue hardship. This could take the form of requiring that the employee return to work on a part-time basis, adapting the employee’s workstation, assigning other tasks to the employee, etc.

Conclusion

Given the burden of proof they carry, employers must be careful before dismissing an employee absent owing to disability, sickness or handicap.

In practice, this means that employers must, throughout the entire progress of the case:

  • Document disability cases (frequency of absences, implemented measures, written notices forwarded, etc.);
  • Closely track the status of the medical file (medical follow-ups provided by the employee, recommendations from the attending physician, suggested accommodations, expert medical opinion if needed, etc.).

Each case is unique and should therefore be analyzed as such. To learn more, please contact Jean-Alexandre Savard or Jessica Gauthier, attorneys with Stein Monast today.

*Jessica Gauthier contributed to the writing of this article. 

managing-disability

Mr. Savard’s practice is mainly focused on labour and employment law. Consequently, he is called upon by government bodies as well as unionized or non-unionized corporations operating in a variety of sectors to advise and represent them in matters of collective and individual workplace relations, labour standards, accreditation, occupational health and safety, human rights and freedoms, and pay equity.
Jean-Alexandre Savard, Attorney with Stein Monast L.L.P.
Ms. Gauthier mainly practices in the fields of insurance law, and civil and professional liability. She has had the opportunity to represent numerous insurers and she carried out various mandates relating to subrogation, policyholders’ defence, insurance coverage and fraud, with respect to general and personal insurance.
Jessica Gauthier, Attorney with Stein Monast L.L.P.