When disability, poor performance mix (Legal view)

Duty to accommodate disability before discipline, dismissal
By Genny Na
|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.