Can i be terminated while on sick leave in ontario

To Date. Content - Any - Article Event Information. Article Type - Any - Article Video. Can an employee be terminated while on medical leave in Ontario? Dec 1, pm EST. Samfiru Tumarkin LLP. Termination for cause Another circumstance in which an employee on medical leave can be terminated is if that employee has committed serious, willful misconduct.

Risks of termination Terminating an employee who is on an approved medical leave is fraught with risk and is usually ill-advised, but it is not impossible. From the archives. Managing employee performance and discipline Oct 6, The truth about temporary layoffs Sep 9, View the discussion thread. Editor's Picks. Postmedia may earn an affiliate commission from purchases made through links on this page.

One never expects to leave work for an indefinite period, suddenly off-loading work fraught with looming deadlines to colleagues; leaving your employer and coworkers in the lurch. All prudent employers need good counsel on their side to navigate their obligations when it comes to such accommodation. For example, Jocelyn Hebert was employed to clean and maintain a police station. Three years after her employment commenced, Hebert notified her employer, a numbered company, that her doctor had recommended that she take a stress leave for about three months.

The employer had to hire a new person to clean and maintain the station. It also suspected that Hebert would likely be away longer than the estimated three months. Hebert launched a human rights complaint citing that she was only terminated as a result of her sickness. Practically speaking, it was forced to replace Hebert on extremely short notice and it would be inconvenient to hire and train a new employee only to be terminated a relatively short time later when Hebert returned.

Nevertheless, the Tribunal found that discrimination occurred. She does not need to show that it was the sole or the dominant reason. I frequently handle files where clients are fearful of firing an insubordinate, low performing employee on a medical leave. Leaving the legitimacy of these medical claims aside, if an employee is unsuitable and must be terminated, terminations during a medical leave are permissable as long as the reason for termination has nothing to do with the fact that they are sick and required accommodation.

I have my clients document ongoing concerns with disobedient employees throughout the course of their employment and, if termination was already in the offing, use the time that they are on medical leave to collect more evidence, interview colleagues and supervisors, review their performance history, all to build a strong body of evidence supporting the termination.

Of course, if you happen to learn of some new ground of cause, such as dishonesty, during the disability leave, you can terminate the employee immediately. Employees may be doing themselves a disservice by taking a sick leave at a time where they have exhibited a poor attitude, desultory performance and unwillingness to improve and were already on a performance improvement plan.

Their employers may well have a legitimate reason to terminate them whilst on their leave. Indeed, taking the leave may exacerbate the prospects of dismissal as other employees, now feeling protected, come out of the woodwork to volunteer new information. Whitmore filed a Human Rights Complaint that she had been discriminated against on the basis of medical leave due to a disability.

Her employer insisted that the termination was due to poor performance and presented evidence that demonstrated Ms. Whitmore had improperly booked patients, failed to respond to consultation requests and had not faxed over consultation reports regarding patient diagnoses, treatments and medication requests. The tribunal decided that the evidence far outweighed the suspicious timing of her dismissal and Ms. The optics of firing an employee on sick leave are not good.

As an employer, this puts you in the position of having to demonstrate the legitimacy of the termination. To prove that your decision to terminate an employee has nothing to do with their sick leave, you will want to have ample, timely documentation to support your dismissal decision.

You should be able to easily show that termination was on the table before your employee went on leave. To protect yourself against claims of discrimination, employers should make sure they document poor workplace performance or behaviour as it occurs so that they have evidence to legitimize the termination of an employee who is on leave. If it is too hard to clearly and incontrovertibly prove that your decision to terminate an employee was not related to their leave, you can always simply terminate them without cause and offer appropriate notice or pay in lieu thereof.