Can em­ployer fire a worker ab­sent due to WSIB claim? Watch out, it could be costly

The Hamilton Spectator - - BUSINESS -

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@rossm­


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