Terminating Employee on 3 Month Sick Leave Discriminatory

You are an employer and you have one employee, who cleans and maintains a local police station.  The employee has worked for you for about 3 years and has been a good employee.  However, in late October 2010, the employee tells you that his doctor has recommended a stress leave until late January 2011. Now you need to hire someone to do that work, and finding a person who can do the job for only 3 months may be difficult.  Plus, you suspect that in fact the employee’s absence will end up being longer than 3 months.  So you decide to terminate the employee for ‘administrative reasons’, so you can hire a permanent replacement.  You advise the employee in early December 2010 of the termination.  Since the employee’s leave was to run until late January 2011,  you assume that you have provided more than the three month’s statutory notice required by the Employment Standards Act.
The employee files both an Employment Standards Act complaint for a termination pay, and a human rights complaint alleging you dismissed him because of his disability.  Have you violated the Human Rights Code?  What about the ESA claim?
These are the facts in a case issued this week by the Ontario Human Rights Tribunal called Hebert v.  1497422 Ontario Inc.
Decision
The ESA claim obviously is not dealt with by the Human Rights Tribunal, but the Tribunal notes that the employer had been ordered to provide the employee with 3 weeks’ termination pay under that legislation.  In other words, the employer was not entitled to rely on the remaining period of sick leave as constituting the period of notice required by the ESA.  Fresh notice would need to be given at the end of the sick leave.  Do you know why that is?
Take a look at Section 59 of the ESA, which says that the period when an employee is on a leave is considered to be part of the employees’ period of employment.  Do you think that provides the answer?
Now back to the Human Rights decision.  The Tribunal rules that the termination was disability related and therefore a violation of Section 5 of the Human Rights Code. Firstly, there was no dispute that the employee was suffering from a temporary disability within the meaning of that section. Secondly, the Tribunal noted that all that needs to be established to find a breach of Section 5 is that the “disability was a factor in the respondent’s decision to terminate his employment. He does not need to show that it was the sole or the dominant reason.”
Thirdly, Section 17 of the Code deals with disability issues in the workplace, and requires that no person can lose their job because of a disability, unless their disability renders them incapable of performing the essential duties of a job, and it is not possible to accommodate the employee without incurring “undue hardship”. Where the disability involves only a temporary absence from the workplace, the duty to accommodate requires that the employer explore the possibility of finding a temporary replacement.  The employer did not do this, and instead took the easy route by hiring a permanent replacement:

In this case the respondent knew that the applicant would be away for a temporary period and had every intention of returning to his job. This should have caused the respondent to then look at whether and how it could accommodate the applicant’s disability by enabling his return to work at the end of his medical leave. The respondent did not do this.

I find that the [Employer]… did not seriously entertain the possibility of hiring a temporary employee and took no steps to meet the procedural component of the duty to accommodate. Essentially, the respondent mistakenly believed that once the applicant went on medical leave, it was open to it to simply replace the applicant on an indeterminate basis.

Therefore, the employer violated the Code by terminating the employee during his sick leave.
Since the employee had not looked for alternative full-time employment after his sick leave period expired, he was not entitled to a lost earnings award.  Employees must ‘mitigate’ their losses by looking for alternative employment that would reduce their damages.  However, Section 45.2 of the  Code permits the Tribunal to award damages to an employee for injury to dignity, feelings, and self-respect.  The amount was assessed at $12,000, plus interest.
Questions for Discussion
1.    Would the outcome have been different if the employer had advertised for a 3 month placement and received no applicants?
2.    Do you think it is unreasonable to require an employer to save the job of a person who takes a medical leave?
3.    Absent the Human Rights Code, the common law of employment would permit an employer to terminate an employee who cannot report to work due to illness, since absenteeism is a breach of the contract.  The state has stepped in to prohibit that.  Do you think the state was correct in doing so?