It is important to clarify that your employer cannot fire you because of your disability, however, it is possible for your employer to fire you when you are on disability leave as long as the reason for the termination of employment is not related to your disability.
If you have been fired by your employer because of your illness or disability, that would likely be contrary to the Ontario Human Rights Code.
If you are terminated while on disability if you can establish that one factor in the termination of your employment was your disability, you may be able to allege a violation of the Ontario Human Rights Code.
If the termination of your employment has nothing to do with your disability, there is nothing in law that prevents your employer from terminating your employment even if you are off work on disability leave.
There may be other remedies available to you if you are terminated in those circumstances, depending on the nature of the termination but it is important to note that it is permissible for an employer to terminate you even though you are on disability leave.
An employer has an obligation to accommodate an employee returning from disability leave. An employer may even be required to canvass alternative work possibilities if employees are unable to perform the duties of their pre-disability employment.
Although the duty to accommodate on the part of an employer is fairly extensive, it is not completely unfettered, and there may be circumstances where the employee cannot be accommodated in any capacity.
If you are unable to return to work in any capacity at any point in time, you may find yourself in a situation where there is a “frustration” of the employment contract.
Determining whether a contract of employment has been frustrated is fact-specific. The real challenge lies in determining whether a disability is permanent and whether there is any likelihood of a return to work in some capacity.
Whether or not there is a frustration of your employment contract often depends on whether your illness or incapacity is likely to be of indefinite duration such that you would never be able to perform the duties contemplated by your employment contract or that it would be unreasonable to expect the employer to wait for your recovery.
If it is determined that there has been a “frustration of contract”, the employer’s only obligation may be to pay minimum entitlements under applicable employment standards legislation. Under Regulation 288/01 of the Employment Standards Act, 2000 (“ESA”) when an employment contract is frustrated due to illness, the employer is obligated to pay the minimum termination pay and severance as of the date of frustration. It is important to note that every case is different and just because an employer alleges that there has been “frustration of contract” does not mean that is indeed the case.
The court confirmed that frustration of contract is not simply due to the number of years an individual has been off work but whether the disability has become permanent eliminating the possibility of a return to work within a reasonable period of time.