Incarcerated employee

Holding a jailed employee's position open

Stuart Rudner

Question: Does an employer have an obligation to hold a position to an employee who is serving a few months in jail? Is there a threshold for the length of a sentence before the employee can be dismissed?

Answer: It is a fundamental term of the employment relationship that the employee will be available to provide services to the employer under the ordinary course of employment. Of course, a certain level of absenteeism is common in almost every employment relationship. Some will be innocent — for example, absenteeism due to illness — and others will be culpable — such as taking off the Friday before a long weekend. Any absenteeism will have to be considered in order to determine whether it has reached the level where the employment relationship may no longer continue.

In addition, there is a concept at law known as frustration of contract. In essence, this addresses the situation where, due to circumstances which did not exist at the time the contract was formed but subsequently came into existence, it has been rendered impossible for the contract to be completed. By way of an unrelated example, if an individual agrees to rent a condo from a colleague, and the entire condo complex is subsequently destroyed by fire, it will of course be impossible for the contract to be completed. In such circumstances, a court might conclude the contract has been frustrated and that all parties are relieved of the obligations thereunder.

If an employee is unable to work, perhaps due to illness, or because she is incarcerated, that would obviously render it impossible for her to meet her contractual obligations. However, simply determining that someone is in jail will not be the end of the analysis. The determination of whether a temporary incapacity to work is a frustrating event is contextual and will depend on the particular circumstances of the case. Factors such as how long the individual would be unavailable to work, the nature and size of the employer, whether the individual is easily replaced, or whether the absence will create significant hardship for the employer would be considered.

As a result, there really is no hard and fast rule as to how long the sentence of imprisonment must be before the contract is frustrated. Like many concepts in the world of employment law, this is an issue that must be assessed on a case-by-case basis.

Stuart Rudner is a partner in Miller ThomsonLLP’s Labour and Employment Group in Toronto. He can be reached at (416) 595-8672 or

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