Disability not a crutch for unsatisfactory workers

By Jeffrey R. Smith

Employment law and human rights law have protections for employees who get injured or sick and have to take time off work because of it. Disability is a protected ground under human rights legislation, so illness or injury can’t be a reason for dismissal – or even be a factor in dismissal, lest the employer face charges of discrimination and wrongful dismissal.

However, employers can terminate an employee for poor performance – as long as the employee has been warned and given an opportunity to improve. If there is no improvement – or not enough – to demonstrate the employee is competently performing her job duties, then there could be just cause for dismissal. Or alternatively, if just cause is too difficult to prove – and the bar is generally pretty high – then the employer can simply terminate without cause and provide sufficient notice or pay in lieu of notice.

But things may be a little more complicated if an employee isn’t doing a good job but falls ill or gets hurt. Then the employer is left with someone it may have been thinking of letting go but now whose job is protected under human rights law. But that may not always be the case.

Take the case of the British Columbia doctor who hired a new medical office assistant. Over the first few months of the assistant’s employment, the doctor had some concerns over her performance in some areas and brought it to her attention. Some of the concerns related to scheduling patients, private billing practices, and creating a waitlist of patients. The assistant had difficulty acknowledging there were problems, but agreed to try to improve.

Unfortunately, the doctor didn’t see much improvement and thought about terminating the assistant’s employment after a little over one year. However, it was late in the year and the doctor didn’t want to be hiring and training a new assistant before Christmas.

Shortly after Christmas, the assistant developed a medical issue that required surgery. She went on medical leave and the doctor assured her that her job was safe – he even topped up her employment insurance benefits so she received close to her full salary while off work. The assistant indicated she wanted to come back to work as soon as possible, but the doctor cautioned she make sure she was better.

After a couple of months, the assistant tried to come back a couple of times, but the doctor found she was making as many mistakes as usual and his nurse said she seemed disinterested in learning new booking processes. The doctor finally decided the assistant wasn’t going to improve and dismissed her, though she was still technically on medical leave.

The B.C. Human Right’s tribunal dismissed the assistant’s discrimination complaint, finding the only reason for her dismissal was her continuing poor performance. The evidence showed there had been performance issues throughout her employment well before her sick leave, so it wasn’t an excuse the doctor was using.

Also, it didn’t make sense that the doctor topped up her benefits while on leave and waited months for her to return if he intended to fire her because she was on medical leave – it indicated he still held out hope she would improve. However, when the doctor saw she was still bad at the job in a couple of attempts to return to work, it drove home the point that he couldn’t employer her any longer: see Whitmore v. Dr. J.T. Kelsall Inc., 2017 CarswellBC 1415 (B.C. Human Rights Trib.).

So it is possible to fire an employee with a disability or who is on medical leave, as long as that disability or leave doesn’t play a role in the dismissal. A disability isn’t a guarantee of a job, it’s a guarantee of a fair opportunity to win and hold on to that job. Performance still matters.