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As a starting point, it is important to remember that Ontario’s Human Rights Code requires an employer to look for solutions to return an employee to work either fully or with modifications. This legal requirement is referred to as the Duty to Accommodate. All Ontario employers, whether they have 1 or 100,000+ employees are legally required to accommodate an employee to the point of undue hardship.
Assuming that you have fulfilled your legal duty to accommodate and the employee is refusing to return to work because he claims that he is permanently disabled, your legal obligations as an Employer depend on whether the contract has been frustrated or whether the employee can be seen as abandoning his employment.
Frustration of Contract
If the employee is refusing to return and the employee’s personal doctor has provided an assessment which supports the finding that the employee is permanently sick/disabled and can no longer work (whether full or modified), then this may be a situation where the employment contract is “frustrated.”
A frustrated employment contract happens when either the employee or employer can no longer continue the working relationship due to no fault on either party. When a contract is frustrated, the employment relationship ends but the employee is still entitled to his or her termination entitlements under the Ontario Employment Standards Act (i.e. statutory notice and statutory severance). Typically, frustration of contract arises when an employee has been off work on disability leave for an extended period. However, frustration of contract is not determined by the time the employee has been on leave: frustration occurs when the employee is determined to be permanently sick/disabled and no longer capable of working for the employer in a full or modified capacity.
If on the other hand the employee does not have a valid reason to support his refusal to return to work (i.e. no medical information to support the refusal to return to work) AND you have sought an independent medical opinion to determine whether the employee can return to work AND the medical assessment found that the employee can return to work with or without modification/accommodation AND you have offered to accommodate the employee AND the employee still refuses to return to work… in such cases, the employee could be seen as abandoning his job.
Job abandonment occurs when an employee has no intention of returning to his/her job but has not formally quit. The law treats employees who have abandoned their job the same as employees who have resigned. Where an employee abandons his/her job, the employer has no obligation to provide termination notice or severance, whether under the Employment Standards Act or under the common law.
As with all things in law, the strategy you pursue should be based on the specific facts of your case. So, before you take the position that an employment contract with an employee is frustrated or that the employee has abandoned his or her job, contact us for an employment law consultation. Remember that preventing a legal dispute is always easier (and in most cases less expensive) than resolving a legal dispute that has not been managed properly.
If you found this video helpful, please share it with individuals in your professional and personal networks who might benefit from the information. And remember to submit your workplace/human resources law questions to AskHermie@advocation.ca or on the form provided on this page.