When disability, poor performance mix (Legal view)Duty to accommodate disability before discipline, dismissalBy Genny Na09/06/2010|Canadian HR Reporter|Last Updated: 09/07/2010 An employee who is performing poorly or has excessive absenteeism could lead an employer to consider dismissal. But if the employee has a disability, dismissal becomes a bit trickier due to the legal challenges that could potentially arise.The first thing employers must recognize is the distinction between culpable and non-culpable conduct. Culpable conduct is blameworthy and can provide cause for dismissal, regardless of any disability. However, an employee cannot be disciplined for non-culpable conduct, which includes any conduct related to a disability.For example, if an employee is a diagnosed kleptomaniac, an incident of theft could arguably be non-culpable. The conduct is not the employee’s fault but rather symptomatic of the disability. To Read the Full Story, Subscribe or Sign In Remember Me Forgot Password If you are a current Subscriber, please click here to set-up or update your login information.