Date: 2007 Author: Daniel A.

Lublin Publication: Metro Distinction between permanent disability and temporary illness Can an injured employee languishing on medical leave simply be discarded by his employer According to a recent !ritish Columbia case" absolutely not# $hen %ashmir &andhu too' time o(( wor' to recover (rom a car accident" he e)pected to return to his job when his injuries healed. !ut the problem (or &andhu*s employer" Delta" !.C.+based ,orth &tar Mills Ltd." wasn*t allowing &andhu an e)tended absence (rom wor' - it was whether it would permit him to return. $hile &andhu was still o(( on leave" ,orth &tar (illed his position. &i)teen months later" with his health (inally restored" &andhu tried to return. !ut his employer re(used to give him bac' his old job. &andhu had been away (or a lengthy period - but he didn*t believe that he should have lost his job. ,orth &tar disagreed. Arguing that &andhu*s lengthy and inde(inite return date had (rustrated his employment" which means that it had e((ectively ceased to e)ist" it said it was under no obligation to re+hire him when he had recovered (rom his illness. &andhu had been absent (or si)teen months and had not speci(ically indicated that he ever intended to return. $hen it wasn*t clear when - or i( - &andhu was returning" it had no choice but to (ind a replacement - a replacement that &andhu could not simply .bump/ out o( the job when he (inally recovered. !ut the judge deciding the case was hardly convinced by ,orth &tar*s arguments" noting that &andhu was never as'ed i( he was coming bac' to wor' and was not told that his job was in jeopardy i( he was unable to return by a certain date. 0ocussing on the distinction between a permanent disability and a temporary illness" the judge also rejected ,orth &tar*s de(ence that &andhu*s illness (rustrated his employment" concluding that the nature o( &andhu*s injuries were such that his recovery should have been e)pected. 1mployers are not permitted to simply discard employees whose prospects (or recovery appear dim. $hile a legal de(ence may arise when an employer can reasonably conclude that a long+term absence has become permanent" Canadian employers cannot opt (or that de(ence prematurely - or" as ,orth &tar Mills Ltd. recently learned" ris' paying considerable damages to an employee it did not thin' it had (ired. 2n situations o( long+term illness or injury" Canadian employers and their employees should consider the (ollowing lessons gleaned (rom this case3 &uccess(ully demonstrating that employment has been (rustrated by a disability is a ris'y endeavour that is seldom success(ul in court3 a permanent illness must be indisputable and the medical evidence dispositive. A !ritish Columbia judge recently (ound" as an e)ample" that a two+year absence with slight prospects o( return" was satis(actory to meet the test. 4he illness*s nature" duration and the prospects o( recovery are the most important (actors. 1mployers who proceed to terminate employees without genuinely considering these (actors not only ris' wrong(ul dismissal damages" but violating human rights legislation as well.

1mployment contracts should be thoroughly reviewed. &ubject to human rights legislation" an e)press agreement can permit employers to terminate employees on their disability rolls" where such a right would not otherwise e)ist. 5rovincial legislation varies" so see' legal advice. 2n 6ntario" (or e)ample" statutory severance pay is mandatory even where (rustration is proven.