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.
Distinguishing between culpable and non-culpable conduct is challenging when an employee is disabled, particularly in the case of a drug- or alcohol-addicted employee. Is poor work performance or absenteeism culpable or a consequence of the disability?
Absenteeism and frustration of contract
Absenteeism caused by a disability is not culpable and, therefore, not blameworthy — an employee cannot be disciplined for this type of absenteeism. But chronic absenteeism can “frustrate” the employment contract, giving an employer just cause to repudiate it.
In unionized workplaces, arbitrators have long recognized employers can justify dismissal on the basis of “innocent” absenteeism. Where an employee’s absenteeism is excessive and there is no reasonable prospect for improvement in the foreseeable future, dismissal can be justified on the rationale an employer is entitled to expect a reasonable level of attendance from employees. However, the employer must ensure it has met its duty to accommodate before dismissing for frustration of contract.
Where there is uncertainty over whether conduct is caused by a disability, an employer should consider providing accommodation while obtaining additional medical information. This may reveal an employee has deficient coping mechanisms or physical limitations from his disability that affect his work.
Duty to accommodate
Failure to accommodate disabilities in employment is discriminatory in all Canadian jurisdictions. An employee cannot be dismissed because of a disability, unless he has first been accommodated to the point of undue hardship.
An employer must first determine the essential duties and requirements of the employee’s position. After accommodation is made, the employer has a right to expect satisfactory performance of the essential job duties.
As long as an employer has satisfied its duty to accommodate, evidence of excessive absenteeism, without any prospect for improvement in the foreseeable future, can justify the dismissal of an employee, regardless of any recognized disability. This was emphasized by the Supreme Court of Canada in Syndicat des employé(e)s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil.
In Hydro-Québec, a unionized employee who suffered from various physical and mental ailments missed 960 days of work from 1994 to 2001. Over the years, Hydro-Québec adjusted her working conditions and accommodated her in different ways. Despite having an accommodation plan in place, the employer received medical evidence the employee would no longer be able to “work on a regular and continuous basis without continuing to have an absenteeism problem as in the past.”
Hydro-Québec terminated the employee based on her inability to work on a regular and reasonable basis and its belief this would not improve. The employer had satisfied its duty to accommodate, found the Supreme Court of Canada.
“In a case of chronic absenteeism, if the employer shows that, despite measures taken to accommodate the employee, the employee will be unable to resume his or her work in the reasonably foreseeable future, the employer will have discharged its burden of proof and established undue hardship,” said the court.
When enough is enough: Tips for employers
Hydro-Québec provides guidance on the extent to which an employer must provide accommodation before reaching the point of undue hardship. However, any dismissal of a disabled employee, whether for cause or without cause, can give rise to allegations of direct or indirect discrimination. Employers can reduce this risk by taking the following steps:
• Carefully and rigorously articulate the reason for dismissal. While an employer is not required to provide a reason for a dismissal without cause, it may be useful to do so to avoid the perception of discrimination.
• Verify the disability is not in any way a factor and ensure all appropriate accommodation attempts have been made, including requiring the employee receive treatment. An employee who refuses treatment or does not co-operate with a treatment program can create undue hardship, giving the employer grounds for dismissal.
• Implement a “last chance agreement,” whether the workplace is unionized or non-unionized, as part of the accommodation plan prior to dismissal.
• Establish an attendance management program that relies on objective criteria and distinguishes culpable absences from non-culpable absences. The program should establish a series of meetings and warnings that become progressively more serious, with dismissal a final option if attendance does not improve.
• Provide ongoing support and assistance to the employee in her attempts to secure new employment.
Employers should be reminded any accommodation process ought to be designed to respect and promote the personal dignity of a worker with a disability. If the employment relationship comes to an end from a frustration of the employment contract due to illness or injury, the employee may still be entitled to notice of termination under the applicable employment standards legislation.
For more information see:
•Syndicat des employé(e)s de techniques professionnelles & de bureau d’Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.).
Genny Na is a lawyer at Borden Ladner Gervais in Toronto, practising in the areas of labour and employment law, privacy law and education law. She can be reached at (416) 367-6032 or firstname.lastname@example.org.