TERMINATION OF EMPLOYMENT while on Medical Leave

Were you terminated while on medical leave?  Then, you may be wondering whether this is even legal.  Well, the short answer is yes, but there is more to it. 

The law has long recognized the mutual right of both employers and employees to terminate an employment contract at any time provided that there is no contract that says otherwise.  However, regardless of what is written in a contract, an employer owes its employees certain duties and obligations under various legislations and under common law.

For instance, the Alberta Human Rights Act, RSA 2000, c A-25.5, prohibits employers from discriminating against employees based on their race, religious beliefs, colour, gender, gender identity, physical disability, mental disability, marital status, etc.  Even when the employment contract is silent on this very subject, the employer cannot discriminate against its employees for these aforementioned grounds.

To be clear, it is not discriminatory to terminate an employee on medical leave for the reasons entirely unrelated to their disability.  However, if the employer’s decision to terminate the employee is influenced by the fact they are on medical leave or they are disabled, it would be considered a breach of the Alberta Human Rights Act.

Further, while the employer may have other justifiable reasons to terminate an employee during a medical leave, the timing of the termination may create a presumption that the medical leave, or ultimately the disability, was a factor in the termination decision.  The employer would then be expected to show that the employer terminated the employee for a non-discriminatory reason and that the disability was not a factor in their decision.

A possible scenario where the employer can terminate an employee on leave for the reasons unrelated to their disability would be if the entire department, which the employee was part of prior to their leave, was dissolved and everyone in the team was let go.  In this case, it is more likely for the courts or the Human Rights Tribunal to find that the employer had justifiable reasons to terminate the employee on leave and that the reasons were not discriminatory.

Nonetheless, the law does not require the employer’s decision to be made entirely on the basis of disability, or other protected grounds, in order to find that discrimination has occurred.  In other words, it is not necessary that the discriminatory reasons be the sole or even the primary reason for the termination.  If the dismissed employee’s disability ever so slightly influenced the employer’s decision to terminate the employee, then discrimination has occurred regardless of whether the primary reason behind such a decision was justifiable.

To reiterate, an employer can terminate an employee who is on medical leave.  However, its decision to do so must be unrelated to the fact that the employee is on leave or their disability.

If you have been terminated while on leave but you are unsure whether your termination would be considered discriminatory, please contact Osuji & Smith Employment Lawyers and we would be happy to assist you with the assessment.

Author: Claire Lee