- November 23, 2015
- by admin
The effects of a serious injury or a serious illness or disability ripple through many aspects of life, one of them being your job. What happens when you just can’t muster the strength to return to work? How long does your employer have to keep your job open for you?
The answer depends on the circumstances. One judge said it “depends on whether or not the illness or incapacity was of such a nature or likely to continue for such a period of time that either the employee would never be able to perform the duties contemplated by the original employment contract or that it would be unreasonable for the employer to wait any longer for the employee to recover.” (Skopitz v. Intercorp,  O.J. No. 1543 at 21 (Ont. Gen. Div.)). In some cases, the answer is obvious. The type of disability you experience makes it absolutely impossible for you to return to work. In that case, the employment contract is “frustrated” and your employer does not have to provide notice or pay in lieu of notice.
A List of Factors that make up the “circumstances”
1. Importance of your role in the company. The company will not be able to survive without a key employee, but can manage without an employee with a lesser role.
2. Availability of sick leave or long term disability (LTD) benefits. The company providing these benefits anticipated the possibility of an extended absence.
3. Efforts to accommodate you have failed. An employer must try to adjust your work environment to accommodate your disability to the point of undue hardship. This is a Human Rights Code requirement. Without this effort, the employer does not know whether you are unable to perform the duties of your employment.
4. Your length of service. In a long-term employment contract the parties would expect the employer to grant a longer leave of absence.
5. Your prognosis. If the nature of your injury or illness is such that you are expected to recover in the foreseeable future, the basis of your employment contract may not be destroyed.
There may be other circumstances unique to your situation that affect the question of whether your contract of employment is frustrated. Perhaps your company has set a precedent of giving long leaves of absence to employees. Perhaps your company has led you to believe that you are still an employee, even though you have been off work.
All these circumstances are interrelated and cumulative. If you believe that you have been wrongfully dismissed because of your illness or disability, you should speak with one of our lawyers. The onus is on the employer to prove, on a balance of probabilities, that your incapacity, looked at before your purported dismissal, meant that the contract of employment would be impossible to perform or would be radically different from what was understood at the outset.
The law has been slowly developing in this area of employment law called “frustration of contract” for illness or disability.
Speak to a personal injury lawyer at Will Davidson LLP
At Will Davidson LLP, we have lawyers who are experienced in representing clients who have been wrongfully dismissed because of disability. Our personal injury lawyers have over 100 years combined experience. Contact our offices for a no-obligation initial consultation.
Let our lawyers focus on your case while you focus on your recovery. With offices in Toronto, Oakville, Huntsville, Midland, Lindsay, Orillia, Markham, Bowmanville, Burlington, and Whitby, our lawyers are well positioned to help you.
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