Can employer fire a worker absent due to WSIB claim? Watch out, it could be costly
Q: I have had an employee for about eight months who has had attitudinal and punctuality issues. I have made notes in his file, but there has been no formal discipline. Now he has gone off on a WSIB claim.
This employee was marching toward termination before he ever went off ill. Can I just terminate when he is cleared for a return to work?
A: Terminating the morning he comes back may turn out to be very expensive.
You would be much better off allowing him to continue the march toward termination that he’d begun before his sick leave.
The definition of disability in the Ontario Human Rights Code includes any illness or injury for which a WSIB claim has been made.
If you terminate the morning he comes back and he files a human rights claim alleging discrimination on the basis of his disability, you are going to be in a tough spot.
The adjudicator will ask you what has changed between the last day he was at work when he was not being terminated and his first morning back. The only answer can be that he was off on a disability leave.
If even a part of the reason for a termination relates to a disability, or an absence related to that disability, you will be found to have violated the code and damages will be awarded.
If you happen to be in a position where you could prove categorically through documentation that he was scheduled to be terminated the very day he called in sick, then go ahead and terminate the relationship the morning he comes back.
In that case you could prove that the termination had nothing to do with the disability and absence. But if you do not have that cold hard proof, terminating him would be extremely risky.
Employees such as the one you have described are usually pretty good at hanging themselves if you only just give them the chance. The next time he has an attitudinal or punctuality problem, don’t just make a note in the file. Speak to him about it and note that in the file.
On the next occasion, don’t just speak to him — give him a letter outlining the issues of the past and the most recent behaviour and cautioning him that a continuation of these problems may lead to termination.
If the employee is as recalcitrant as you have indicated, it won’t take long for him to reoffend.
It’s likely that you will still have to pay him the minimum notice required by the Employment Standards Act — and, perhaps, even a couple of weeks more than that.
By using a progressive discipline process, you are not trying to establish just cause for his termination with the aim of him being owed nothing. What you are trying to establish is a shield against an allegation that his termination is related to his disability and absence.
If you are wrong and this employee is capable of halting his march toward termination and ends up being a decent worker, then think of all the recruiting and training costs you are going to save.
It is not enough, usually, for you to swear an oath and say that if he had not gone off ill you would have fired him anyway.
Obviously the last straw had not been added to the pile before he went off sick or he would already have been gone.
He has the right to add that last straw himself once he is back at work. Don’t let it be his absence.
Ed Canning practises labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com