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Expect the unexpected: Employees (and Rob Ford) on sick leave

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I spent much of this past weekend poring over the news associated with Rob Ford’s departure from the Toronto mayoral race due to ill health. Despite feeling sympathy for Mr. Ford and wishing him a speedy recovery, there were voters and columnists who spoke of their disappointment at being deprived of the opportunity to cast their vote against Rob Ford as mayor. It appears that voters who fall into this camp feel confused about how to proceed in the upcoming election and far more uncertain about the future of the city.

This reminded me of a situation which is sometimes faced by our employer clients and which causes them equal levels of confusion and uncertainty. Does this sound familiar?  You’ve been struggling with a poor performing employee and you’ve finally made the decision that you are going to bring the employment relationship to an end. You’ve done your homework, considered carefully the severance package you are offering and prepared all of the paperwork. Then, right before the termination meeting is scheduled to occur, you learn that the employee has gone off on a sick leave.  Sometimes this seems to be a legitimate case of bad timing, such as when there has been a negative diagnosis as there was with Rob Ford. In other cases, you suspect that this may be the employee’s reaction (conscious or subconscious) to “seeing the writing on the wall” of an impending termination.

Regardless of the reason, the fact is that the employee is now on leave and they continue to be employed, given that the termination meeting never occurred. The employers we have advised in these circumstances find this extremely frustrating and their first question is often whether they can simply proceed to terminate notwithstanding the employee being off (“Can’t we just send the termination letter to their house?”)  Other than in the rarest of cases, we advise against this course of action. First of all, the timing of the termination relative to the employee’s departure on sick leave could well lead to liability for a violation of human rights legislation if it appears that the employee was targeted for termination because they got sick. Even if this liability can be avoided (which it sometimes can), given the employee’s enhanced vulnerability, there is also the risk that the termination itself could exacerbate the employee’s medical condition. In such a case, this could increase substantially the damages to which the employee is entitled on termination.

There are other potential issues that can complicate these cases even further. Sometimes we learn in the course of managing the employee’s disability leave that the employee’s medical condition may have actually been contributing to the performance issues which brought about the termination decision. In these cases, the duty to accommodate could involve revisiting the termination decision following an assessment of all of the relevant employee medical data. In other cases, the employee’s departure on sick leave is closely followed by receipt of a lawyer’s letter alleging that the employee was being “harassed” because of the employer’s performance management efforts and claiming damages for constructive dismissal.  At least in these latter cases, this can often provide a starting point for negotiations leading to the employee’s ultimate exit.

So, just as many people wrote in connection with the unexpected events of this past weekend in the Toronto mayoral race, these cases are often anything but ordinary. Usually, the only thing that is predictable is their unpredictability. That being said, good advice can really help employers deal with the panic that sometimes accompanies the unexpected and chart a clear path forward.

Christine Thomlinson