It’s possible to dismiss an employee with a disability for poor performance or absenteeism, as long as the disability doesn’t play a part
Incompetence versus illness
Many employers — and employment lawyers — can tell you it’s not as easy as it might seem to summarily fire an employee who is doing a bad job. Even if her job performance is atrocious, without proper warning and a chance to improve, the employer should expect to give the employee full notice if it wants to dismiss her.
Things can get even more complicated if the employee has a disability. The duty to accommodate, discrimination and frustration of contract are all issues that can come into play and make what the employer might think is a simple problem much more complex.
Employment lawyer Genny Na delves into the complexities of when an employee’s poor job performance crosses paths with a disability.
Consider the following scenarios:
•An employee who is performing poorly and being considered for dismissal for poor performance advises the employer he has a disability.
•An employee on an attendance management program may be suffering from an alcohol addiction.
•An employee is being accommodated for a disability but continues to be absent from work despite being given several warnings.
The question in all of these scenarios is “Can the employer dismiss the disabled employee?”
There are several legal challenges involved in dismissing a disabled employee, each with different issues.
Distinguishing between culpable and non-culpable conduct
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 whether an employee is disabled or not. However, any conduct related to a disability is non-culpable and an employee cannot be disciplined for non-culpable conduct. For example, if an employee is a diagnosed kleptomaniac, an incident of theft could arguably be non-culpable. It is not the employee’s “fault,” but rather the conduct is caused by 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 merely a consequence of the disability?
Absenteeism caused by a disability is not culpable and therefore not blameworthy. An employee cannot be disciplined for this type of absenteeism. Nonetheless, chronic absenteeism can “frustrate” the employment contract — giving the employer just cause to repudiate it. Likewise, in unionized workplaces, arbitrators have long recognized employers can justify dismissal on the basis of “innocent” absenteeism. Where an employee’s absenteeism is undue or excessive and there is no reasonable prospect for improvement in the foreseeable future, dismissal of the employee has been justified on the rationale an employer is entitled to expect a reasonable level of attendance from its employees. However, before dismissing an employee on these grounds, the employer must ensure it has met its duty to accommodate.
In general, where there is uncertainty over whether or not conduct is caused by a disability, the employer should consider obtaining additional medical information and providing accommodation. For example, the medical information may reveal the employee has deficient coping mechanisms or physical limitations as a result of his disability that have translated into the workplace.
The duty to accommodate and the right to manage performance
Human rights regimes throughout Canada recognize that a failure to accommodate disabilities in employment is discriminatory. An employee may not be dismissed because of a disability, unless the employee has first been accommodated to the point of undue hardship. In Ontario, for example, the Human Rights Code states: “No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
Thus, 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.
Regarding absenteeism, as long the employer has satisfied its duty to accommodate, evidence of excessive absenteeism in the past, without any prospect for improvement in the foreseeable future, will justify the dismissal of an employee, regardless of the existence of a disability. This was the principal point 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.
Hydro Québec dealt with a unionized employee who suffered from a series of physical and mental ailments and missed 960 days of work between Jan. 3, 1994, and July 19, 2001. Over the years, Hydro Québec adjusted her working conditions and accommodated her in different ways. Despite having an accommodation plan already in place, the employer received medical evidence that 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 her attendance would not improve. The Supreme Court of Canada found the employer had satisfied its duty to accommodate.
“The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work,” said the court. “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 or proof and established undue hardship.”
In general, an employer will be able to justify the dismissal of an employee where the employee continues to be incapable of performing the essential duties or requirements of his job, despite the employer having accommodated the employee to the point of undue hardship. In such circumstances, the contract of employment is frustrated and the employer may treat the employment relationship as ended.
When enough is enough: Tips for employers
Hydro Québec provides much needed guidance as to the extent to which an employer must provide accommodation before satisfying its duty to accommodate to the point of undue hardship. However, any dismissal of a disabled employee, whether for cause or without cause, may give rise to allegations of direct or indirect discrimination. Employers can reduce this risk by taking the following steps:
•Carefully and rigorously articulating the reason why the employee is being dismissed. While an employer is not required to provide a reason for dismissal in a “without cause” dismissal, it may be useful to do so in order to avoid the perception it is discriminatory.
•Verifying the disability is not in any way a factor and ensuring all appropriate accommodation attempts have been made, including requiring that the employee receive treatment as part of the accommodation plan. An employee who refuses treatment or does not co-operate may create undue hardship and grounds for dismissal.
•Implementing a “last chance agreement,” whether the workplace is unionized or non-unionized, as part of the accommodation plan prior to dismissal.
•Establishing an attendance management program that relies on purely objective or numerical criteria and does not mix culpable absences with non-culpable absences. The program should establish “a series of steps, involving meetings with higher levels of management, which reflect the escalating seriousness with which the employer views the problem, and which may result in warnings to the employee that he or she may face dismissal unless there is an improvement in attendance,” as outlined in Labour Arbitration in Canada by Morton Mitchnick and Brian Etherington.
•Providing ongoing support and assistance to the employee in attempts to secure new employment.
Finally, employers should be reminded any accommodation process ought to be designed in such a manner as to respect and promote the disabled employee’s personal dignity. If the employment relationship comes to an end as a result of a frustration of employment contract by reason of an 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.).
