In its highest award to date for injury to dignity, feelings and self respect, the BC Human Rights Tribunal recently awarded a complainant $35,000. In addition, the Tribunal ordered that the employer pay the complainant’s “reasonable legal fees”.
The employer terminated the employment of a long term employee who had been absent for two years with physical and mental disabilities. Invoking the common law doctrine of frustration of contract, the employer argued the termination was justified due to the employee’s lengthy absence.
The Tribunal accepted that an employer’s duty to accommodate may be at an end if it can show that an employee’s absence has resulted in frustration of the employment contract. The Tribunal found that whether the employment relationship is frustrated will depend, among other things, on whether the employer knew at the time of the termination that the employee was incapable of regular and continuous attendance in the future, with or without modifications.
The Tribunal held that if an employer wishes to terminate an employee on medical leave it should warn the employee prior to making the decision to terminate, and give the employee an opportunity to provide medical evidence of his or her prognosis concerning future attendance. Since the employer did not do so, it failed to establish a defence to the termination.
This case demonstrates the critical importance of obtaining relevant medical information before making a decision to terminate a disabled employee who has been absent on an extended medical leave. The significant monetary remedies awarded by the Tribunal in this case also underscore the Tribunal’s trend towards increasing monetary compensation awarded to employees who complain of discrimination.
(Click here for link to Decision)