A recent decision of the Ontario Divisional Court provides much-needed assistance in the definition of the duty to accommodate and the employee’s obligation to participate in this process.
The employee was the store manager of a pharmacy who had taken a leave of absence due to depression. While absent, he injured himself in two accidents which required a longer period of medical leave. He claimed “total disability” which was supported by the LTD provider.
The employer terminated his employment based on frustration of the employment contract. It did pay the statutory sums.
His lawyer soon advised that the employee was working hard to return to meaningful employment. The company’s requests for a medical prognosis and updated medicals and an estimated return to work date were ignored.
The company then proceeded to conclude the termination.
The employee sued, alleging that he was adversely treated under the Human Rights Code and also sought a common law severance sum.
The employer sought a summary dismissal to end the claim. It was denied. The employer successfully appealed to the Divisional Court.
Issue One: Frustration
The medical evidence clearly established that the plaintiff was unable to return to his prior job. There was no contrary evidence offered. This issue was clearly in the employer’s favour.
Issue Two: Accommodation
This question was also resolved in the employer’s favour. The employee was required to show some evidence of his ability to return to work and to disclose his current medical evidence to support and define his restrictions in order to trigger the employer’s duty to accommodate. This issue was straightforward. The employee cannot ignore the company’s requests for medical information and then cry foul. Accommodation is a two-way street.
This case does illustrate an issue that is not litigated frequently. Frustration and accommodation are two edges to a difficult issue. In this instance, the employer acted fairly. It was aided in its position by foolhardy conduct by the employee in refusing to participate in the accommodation process.
The law on this subject is not intuitive. Legal advice is extremely important in navigating dangerous waters. This case had a very simple solution which was to co-operate and be forthright with the employer’s requests. This would have made a tremendous difference.
Get Advice Before You Act
If you have questions about this issue or any employment question, contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.