The law of employment in relation to the disabled employee is a complex area involving the balancing of the rights of the employer with those of the disabled employee and the consideration of both the civil law of employment and law of human rights. This article will examine the rights and obligations of both the employer and the disabled employee and provide some example scenarios.

An employee with a disability which may prevent the employee from attending work for long periods of time or which may greatly restrict the work which they are capable of doing places the employer in a difficult situation. There comes a point when the employer would like to terminate the employment relationship. However, is the employer's "point of no return" defensible in law? The civil law with respect to dismissing disabled employees is fairly well settled, although applying the law can be difficult. Human rights law, on the other hand, has seen a dramatic shift in recent years in favour of employee rights, making the employer's position more difficult.

Wrongful dismissal considerations turn on whether the employee's disability is temporary or permanent. The civil law recognizes that the employer has entered into a contract with the employee to perform certain duties. If the employee can no longer perform those duties, there comes a point when the purpose of the contract has become frustrated. This point of frustration arises when the disability is permanent.

It should be noted that just cause is not a factor because the disability is not the employee's fault. Rather, the law considers the disability to arise from an Act of God. A permanent disability renders the employment contract fundamentally different in character from what was originally contemplated by the parties. An employer is therefore not civilly liable for dismissing a permanently disabled employee.

The difficult question, of course, is when an employee will be considered to be permanently disabled. Because the basis for dismissal is frustration of the contract, medical opinion is merely one factor among many the court will consider. The question the court asks is whether the employee's incapacity is of such a nature, or will likely continue for such a period, that further performance of his or her employment obligations will be impossible or radically different from that agreed upon in the contract of employment. In answering this question, the court may look at the following factors:

1. The terms of the contract, including the provisions as to sickness pay;


2. How long the employment is likely to last in the absence of sickness;


3. The nature of the employment;


4. The nature of the illness or injury and how long it has already continued and the prospects of recovery; and


5. The period of past employment.

These factors are interrelated but not exhaustive. Any other factors which bear on the issue must also be considered.

As an example of how the factors are applied, one well-known case involved a salesman for a clothing wholesaler. The salesman had been employed for 30 years when he was summarily dismissed without notice. His work had deteriorated sharply in the last three years due to a mental illness. Although the employee eventually recovered from his illness, he was incapable of discharging his duties for two years. The court recognized that although this was a long period of disability, the employment contract was clearly intended by the parties to be of long duration and the position with the company was not a key post requiring a permanent replacement in the event of prolonged absence. In view of these circumstances, the court held that two years' disability did not constitute a permanent disability. (Yeager v. R.J. Hastings Agencies Ltd. [1985] 1 W.W.R. 218 (B.C.S.C.))

This is but one example, and other cases with different circumstances have found that a disability of less than two years was sufficient to constitute a permanent disability. However, even if the test of permanent disability is met civilly, the employer could still face a human rights complaint for discrimination on the basis of disability.

Human rights law requires an employer to accommodate disabled employees to the point of undue hardship. If the employer does not meet its duty to accommodate, it can be subject to sanctions from the Human Rights Board, even though the dismissal may have been justified from a civil standpoint. The courts in recent years have significantly expanded the duty to accommodate. This change in the law will not have much impact on the employee who is unable to report to work, because presumably there is no accommodation which will enable the employee to work. No human rights consequences arise from this scenario. Similarly, the case of a mildly disabled employee who can perform his or her job with some minor accommodation (such as a wheelchair ramp and a customized computer station) should not attract any human rights consequences. Problems are most likely arise when the employee is able to report to work, but is incapable of performing some of his or her former duties.

In this last scenario the employer is under an onerous duty to accommodate the employee. Human rights boards and courts have not looked sympathetically on employers' claims that accommodation will be too costly. Similarly, the courts have held that workplace morale is not a factor. Morale issues can arise when accommodation requires the employer to change job descriptions so that tasks the disabled employee is no longer capable of performing are shifted to other employees, or when responsibilities are shifted from other employees to the disabled employee so that the disabled employee has enough to do. Workplace morale can be affected in that other employees may feel like they are having to carry the load for the disabled employee who is receiving special treatment. Despite the costs to finance and moral, it appears that as long as the employee can perform essential job functions, it is the employer's responsibility to ensure the employee can work. Failure to meet this duty can result in a variety of sanctions against the employer. All this is not to say that disabled employees should not be accommodated - they should - but to point out that this sometimes places employers in very difficult situations.