8/13/2019 Disability vs Disease.doc

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Date: 2007Author: Daniel A. LublinPublication: MetroDistinction between permanent disability and temporary illnessCan an injured employee languishing on medical leave simply be discarded by his employerAccording to a recent !ritish Columbia case" absolutely not#

$hen %ashmir &andhu too' time o(( wor' to recover (rom a car accident" he e)pected toreturn to his job when his injuries healed. !ut the problem (or &andhu*s employer" Delta"!.C.+based ,orth &tar Mills Ltd." wasn*t allowing &andhu an e)tended absence (rom wor' - itwas whether it would permit him to return.

$hile &andhu was still o(( on leave" ,orth &tar (illed his position. &i)teen months later" withhis health (inally restored" &andhu tried to return. !ut his employer re(used to give himbac' his old job. &andhu had been away (or a lengthy period - but he didn*t believe that heshould have lost his job.

,orth &tar disagreed. Arguing that &andhu*s lengthy and inde(inite return date had

(rustrated his employment" which means that it had e((ectively ceased to e)ist" it said it wasunder no obligation to re+hire him when he had recovered (rom his illness. &andhu had beenabsent (or si)teen months and had not speci(ically indicated that he ever intended to return.$hen it wasn*t clear when - or i( - &andhu was returning" it had no choice but to (ind areplacement - a replacement that &andhu could not simply bump/ out o( the job when he(inally recovered.

!ut the judge deciding the case was hardly convinced by ,orth &tar*s arguments" notingthat &andhu was never as'ed i( he was coming bac' to wor' and was not told that his jobwas in jeopardy i( he was unable to return by a certain date. ocussing on the distinctionbetween a permanent disability and a temporary illness" the judge also rejected ,orth &tar*sde(ence that &andhu*s illness (rustrated his employment" concluding that the nature o(&andhu*s injuries were such that his recovery should have been e)pected.

1mployers are not permitted to simply discard employees whose prospects (or recoveryappear dim. $hile a legal de(ence may arise when an employer can reasonably concludethat a long+term absence has become permanent" Canadian employers cannot opt (or thatde(ence prematurely - or" as ,orth &tar Mills Ltd. recently learned" ris' paying considerabledamages to an employee it did not thin' it had (ired.

n situations o( long+term illness or injury" Canadian employers and their employees shouldconsider the (ollowing lessons gleaned (rom this case3

&uccess(ully demonstrating that employment has been (rustrated by a disability is a

ris'y endeavour that is seldom success(ul in court3 a permanent illness must beindisputable and the medical evidence dispositive. A !ritish Columbia judge recently(ound" as an e)ample" that a two+year absence with slight prospects o( return" wassatis(actory to meet the test.

4he illness*s nature" duration and the prospects o( recovery are the most important(actors. 1mployers who proceed to terminate employees without genuinelyconsidering these (actors not only ris' wrong(ul dismissal damages" but violatinghuman rights legislation as well.

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1mployment contracts should be thoroughly reviewed. &ubject to human rightslegislation" an e)press agreement can permit employers to terminate employees ontheir disability rolls" where such a right would not otherwise e)ist.

5rovincial legislation varies" so see' legal advice. n 6ntario" (or e)ample" statutoryseverance pay is mandatory even where (rustration is proven.