Can you dismiss an employee on medical leave?

Many employers will avoid laying off an employee if they’re on medical leave – even if the dismissal is unrelated to the disability.

But that may be an overly cautious approach, judging by a recent case out of B.C. where the employer was vindicated in its termination of an injured worker.

The British Columbia Human Rights Tribunal really had to choose between two narratives — that of the employer, which did make some mistakes, and that of the employee, who exaggerated her allegations, according to Dante Manna, a partner at Stewart McKelvey in Halifax.

“But, it is possible to terminate someone on medical leave, and we get those questions a lot from clients [regarding] medical leave,  statutory leaves: ‘Can you terminate?’ The answer is sometimes... it does depend on the circumstances. And it's worth getting a legal assessment of [the] risks before moving forward.”

Complaints to human rights tribunals have been on the rise for a number of years, says Brett Weninger, an associate at Harper Grey in Vancouver.

“They’re something that employers need to be much more aware about and should have various policies in place for best practices.”

Injury leads to medical leave

In this case, the complainant — who remained anonymous — worked as a carpenter at a general contracting company for about 11 months in 2018 and 2019.

In July 2019, she injured herself at home and told the company she broke her foot and would not be able to return to work until she was cleared by a doctor.

The woman offered to do administrative work while she was injured, but the company did not respond – a mistake it later admitted to, though it also said there was no administrative work available.

The carpenter also requested a letter of employment to apply for a mortgage, but this request “fell through the cracks” and the company again failed to respond.

In September 2019, the company terminated her employment with a phone call. The woman claimed she was told the company needed someone who could work, but the co-owner said he told the worker he was terminating her because work was slowing down.

The company sent a termination email two weeks later, along with offering one week of pay in lieu of notice, and an additional two weeks’ pay in exchange for a release as well as an additional amount related to premiums for extended health coverage for her spouse.

Human rights complaint after termination

The woman did not accept the offer, and filed a human rights complaint in January 2020 alleging that spouses and co-owners, Mr. A and Ms. B, discriminated against her on the basis of her sex and a physical disability both when they did not accommodate her by allowing her to do administrative work while she was injured, and when they ended her employment.

The discrimination complaint on the basis of sex included the woman’s allegation that her health benefits were delayed, she was not reimbursed for fuel expenses, and she was refused a letter of employment.

However, the employer alleged there were performance issues when it came to: the carpenter’s skills, following directions, being late to meetings and getting along with other employees.

The co-owners said it became difficult to place the carpenter at work sites because other employees did not get along well with her, and leaders found her to be insubordinate. They also considered terminating the woman’s employment in the spring of 2019.

The employer also admitted to making mistakes, such as delaying the health benefits, and not fully investigating bully and harassment that she witnessed, along with safety concerns.

Discrimination complaints dismissed

Ultimately, after a five-day hearing, the British Columbia Human Rights Tribunal decided the carpenter had not established discrimination in employment, saying her sex and disability were “not a factor” — and her complaint was dismissed.

The company “could not have accommodated her with alternative work while she was injured without incurring undue hardship,” said tribunal member Jessica Derynck, citing “the lack of available work.”

“The fact that complainant was on leave for her injury when her employment was terminated does not necessarily mean that her injury was a factor in the respondents’ decision and that the termination contravened the [Human Rights] Code,” she said.

“I find that the respondents terminated complainant’s employment for other reasons unrelated to her injury.”

Human rights considerations with dismissals

When it comes to terminating someone on medical leave, it certainly opens an employer up to a potential human rights complaint, says Weninger.

“Employees can often think that they may be entitled to a human rights complaint, if they are terminated while they're on leave.”

In this case, the tribunal considered whether or not the carpenter’s disability or any of the protected characteristics were a factor in the decision of the termination, he said.

“The way they looked at that was reviewing the evidence from the employer — it was both owners of the company — and the supporting evidence that showed… the timing of the termination was due to a loss of a few projects at work and a slowdown in the business overall.”

The company also submitted evidence showing that other carpenters were let go around the same time, and they didn't hire someone to replace that person who they terminated.

But if the company had to decide between laying off one of two workers, and it chose the one on disability, that could be a problem, says Weninger.

“You would need to consider the circumstances in each case separately. But, in a hypothetical situation, certainly that could be different situation where a tribunal member may find that that person's disability was a factor or their leave was a factor in that decision.”

Timing a dismissal during a medical leave

The timing of an employee termination during a medical leave is also an important factor, he says.

“Timing can certainly matter as the tribunal can make an inference in terms of finding discrimination based off of timing. But, at the end of the day, if you're confident that it's completely unrelated, then the timing may not matter.”

This complainant failed to draw a nexus between their disability and the reasons for termination, says Manna.

“Even though it may be communicated very clearly that it's for financial reasons, the timing while a person is on medical leave is not ideal. And so it is recommended to obtain legal advice before that,” he says.

“In a situation like this, we would normally advise to be very specific about the non-discriminatory rationale for termination. Typically, that's one of the first pieces of information that would be provided in the context of a human rights complaint — and perhaps would allow for resolving the complaint before it gets to the tribunal stage.’

Accommodating a return to work

As for the B.C. worker’s complaint that she should have been accommodated despite her injury, that comes back to the principle that there's generally no requirement to create an administrative position for an employee while they recover from injury, says Manna.

“That is usually beyond the undue hardship threshold,” he says.

“Creating a whole new position, even temporarily, is beyond what an employer's obligation would be to accommodate an injured employee... that was underscored in this case.”

Recently, the Ontario Grievance Settlement Board upheld the firing of a provincial government worker for job abandonment following a lengthy medical absence without sufficient medical information.

Providing a paper trail

While the employer in the B.C. case had some documentation on its communication, they weren’t exemplary — though they did own up to their mistakes, says Manna.

“Obviously, they could have paid more attention to all of those things, and got it done in a more timely manner. I think the mistakes are obvious. But it does beg the question: If they'd been able to make less of those mistakes, would the relationship have deteriorated in the way that it did? And would we have ended up with a five-day hearing in front of the Human Rights Tribunal to test out what turned out to be some pretty ridiculous grounds for a complaint?”

This case also involved a “difficult” employee, he says, but it’s always helpful to be organized before you dismiss someone, and to manage the communications carefully — particularly if they are on leave.

“In those circumstances, you want to look very carefully at explaining the reasons for the termination.”

A best practice is definitely to paper the file “early and often,” says Weninger.

In this case, there were concerns about the employee’s performance before she went on leave, and even the tribunal suggests the company could have done a better job in communicating that with the employee, he says.

“But, practically speaking, [it’s about] documenting and having conversations around performance with employees early and often, and papering your file so you have that supporting evidence, so it's not becoming a credibility assessment at the end of the day at the hearing.”

That was one of the big takeaways of this decision, says Weninger, is the tribunal found the employer’s witnesses “much more credible and reliable than the complainant.”