Human Rights and is Frustration of Contract Enough?

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Managing situations where employees who are away from work on long-term absences can be challenging for employers. Difficulties can arise in a number of areas – maintaining contact with the employee, attaining updated medical information, and ensuring the employee continues to make his premium contributions for benefits. At the same time, uncertainty of if and when an employee might return to work can create operational challenges. Employers face the balance of trying to find a temporary replacement for the employee while maintaining the employee’s position available for the employee if and when the employee returns to work. Traditionally, where an employee’s absenteeism was excessive and there was no reasonable prospect of the employee returning to work in the foreseeable future, as long as there was no contractual term providing otherwise, the employer was entitled to discharge the employee for non-culpable absenteeism or to treat the employment contract as having been frustrated, bringing the employee’s employment to an end.

With the proviso that as long as there is no available reasonable accommodation without undue hardship that could result in the employee returning to work in the foreseeable future, this test has generally been recognized as being consistent with human rights obligations of employers and applied by human rights adjudicators across the country.

However, a recent B.C. arbitration decision suggests that when considering discharging employees for non-culpable absenteeism, employers may need to consider more than just the traditional test.

Continue reading to learn why employers should now be doubly cautious in discharging employees for non-culpable absenteeism.

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