Jobs don’t have to be held open indefinitely if an employee cannot do the work.

By Howard Levitt, of Levitt LLP. This article originally appeard in Postmedia News on October 8, 2010.

Paralyzed by fear of human rights and harassment complaints, workers’ compensation applications and other litigation, Canadian employers and their legal counsel often ignore long-term absenteeism.

When employees take extended sick leave, the impact on the workplace is immediate. Not replacing those employees hampers productivity and affects workplace morale.

But employers should not let fear hold them back from taking action. If an employee is unable to work for the foreseeable future, the employment agreement may often be treated, at law, as “frustrated” or at an end by the employer. Other than the minimal obligations under employment standards legislation, the employer is under no legal duty to pay common law reasonable notice to those employees.

Contrary to prevailing beliefs, human rights legislation does not compel employers to keep a position open indefinitely.

That message was conveyed in a recent decision of the Ontario Superior Court of Justice: Hoa Duong, a machine operator employed by Linamar Corp., was unable to return to work due to severe back pain. Efforts to accommodate him with light duties were unsuccessful and he qualified for long-term disability benefits until age 65. The medical reports he provided showed no significant improvement in his condition. After an absence of three and a half years, Linamar proceeded to treat the employment as frustrated and at an end. Duong sued for wrongful dismissal.

Mr. Justice Newbould found no evidence Duong would in the foreseeable future return to work. And he did not award severance because the employer no longer had an obligation to continue his employment.

In deciding to end the employment contract, employers should consider the following:

  • Employee’s job –The more important the role, the shorter the duration of absence an employer must tolerate.
  • Length of employment — The lesser the service, the briefer the time the position must be held.
  • Nature of illness — A long-term or indefinite condition will more likely give rise to an argument of frustration.
  • Length of absence — The longer the absence, the greater the chance a court will conclude the employment contract was frustrated.
  • Prognosis — If the employee is disabled from performing his or her work duties with little or no prospect of return, the employer will have a stronger case for frustration of contract.