Network - Spring 2011 - (Page 45)

O Feature When to Cut By Howard Levitt Sick Staff Off P aralyzed by fear of human rights and harassment complaints, workers compensation applications and other litigation, Canadian employers and their legal counsel often ignore long-term absenteeism. Canadian businesses carry the burden of staggering costs of longterm absenteeism, often without justifiable excuse. When employees take extended sick leave, the impact on the workplace is immediate. Not replacing those employees hampers productivity and affects workplace morale. But employers should not let fear hold them back from taking action. If an employee is unable to work for the foreseeable future, the employment agreement may often be treated, at law, as “frustrated” or at an end by the employer. Other than the minimal obligations under employment standards legislation, the employer is under no legal duty to pay common law reasonable notice to those employees. Contrary to prevailing beliefs, human rights legislation does not compel employers to keep a position open indefinitely. That message was conveyed in a recent decision of the Ontario Superior Court of Justice: Hoa Duong, a machine operator employed by Linamar Corp., was unable to return to work due to severe back pain. Efforts to accommodate him with light duties were unsuccessful and he qualified for long-term disability benefits until age 65. The medical reports he provided showed no significant improvement in his condition. Ironically, employees believe providing such reports enhance their benefit applications. And while they do, they also permit their dismissal with minimal cost. After an absence of three-and-a-half years, Linamar proceeded to treat the employment as frustrated and at an end. Duong sued for wrongful dismissal. Mr. Justice Newbould found no evidence Duong would in the foreseeable future return to work. And he did not award severance because the employer no longer had an obligation to continue his employment. In deciding to end the employment contract, employers should consider the following: www.hria.ca O 45 NETWORK O Spring 2011 http://www.hria.ca

Table of Contents for the Digital Edition of Network - Spring 2011

Network - Spring 2011
Contents
HRIA President’s Message
Legal Precedents Clarify Accommodation Procedure
Thank You!
Accommodation: Have a Plan and Stick to It
Disability Management and Duty to Accommodate: The Need for Good Documentation
Accommodating Disability, Not Bad Behaviour
Common “Mistakes” In Accommodation and How to Avoid Them
Case Studies: Managing Workplace Back and Neck Injuries
Accommodating Addictions in the Workplace
Duty to Accommodate – Employee Responsibilities
The Separation of Church and Work
When to Cut Sick Staff Off
The HR Office
Index of Advertisers

Network - Spring 2011

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