Absenteeism Due To Disability: Has Frustration Of Contract Occurred?

Accommodating the extended absence of an employee who is off work due to illness or disability can be a difficult task for employers. If the absences relate to an underlying disability, the question becomes - can the employer legally terminate the employee without running afoul of human rights legislation or providing reasonable notice of termination (or pay in lieu thereof)?

When an employee is unable to fulfill the required employment duties as a result of a disability, the legal principle of contract frustration may apply. Frustration arises when it is impossible for one of the parties to fulfill the terms of a contract. However, it is often difficult to determine at what point frustration occurs.

In order to justify the termination of an employee on the basis of frustration, the employer should consider the nature and expected length of the illness; the prospect of recovery; and, to a lesser extent, the length of service. Overall, the greater the degree of incapacity, the longer the period of illness and the greater likelihood of persistence, the more likely it is that the contract has been frustrated.

Duty to Accommodate

Before frustration can occur, there is a legal obligation to accommodate a disabled employee to the point of undue hardship. The employer must consider possible accommodations which take into consideration the employee's specific limitations, and may include,

Investigating alternatives to work standards (e.g. modifying duties, shifts or policies); Providing additional assistance, training or assistive devices; or Investigating whether business goals can be met while exempting employees from general standards. Undue Hardship

It is the employer's burden to prove accommodation of the employee to the point of undue hardship. In some provinces, human rights legislation requires consideration of specific factors in determining whether undue hardship has occurred, however, Prince Edward Island's Human Rights Act for example, simply provides that discrimination will not apply where disability is a "reasonable disqualification" from employment.1 Determining whether a disability disqualifies the employee from employment requires careful consideration. Failure to accommodate a disability to the point of undue hardship can result in an award for damages for wrongful dismissal or under human rights legislation.

Most commonly, employers prove undue hardship in the form of a cost to the business whether it be financial...