Unforeseen accident and illness can occur at any time. Illness, even long-term, does not necessarily mean the end of an employment relationship. Employers have an obligation to attempt to accommodate and possibly to pay termination and severance pay even where a contract is frustrated.

What is a frustrated contract? Employment contracts are "frustrated" when an unforeseeable event occurs which makes it impossible for one or both parties to a contract to fulfill its terms. The most common situation occurs when an employee is totally disabled following an illness or accident.

Termination and Severance Pay

Often employers believe that if an employee cannot work for an extended period of time because of illness, the employer can end the employment relationship without consequence. However, if there is a frustration of contract as a result of the employee’s illness or injury, the employer may be required to pay the employee termination and severance pay under the Employment Standard Act (“ESA”).

Even if you will never return to work again because you are totally disabled, you should know that your employer may be required to pay you up to 34 weeks’ pay.

Wrongful Dismissal

Employers sometimes take the position that the employment contract is frustrated because the employee is receiving Long-Term Disability (“LTD”) benefits. Many LTD policies will pay benefits for up to two years if an employee cannot complete the tasks of his/her own occupation. However, after two years these policies often cut off benefits unless the employee cannot complete the tasks of any occupation. If you still qualify for LTD benefits after 2 years this does not mean that the employer can automatically consider your employment relationship over. If the employer ends your employment at that time, you may be able to collect wrongful dismissal damages.

Human Rights

Some employers include clauses in employment contracts which state that the employee is deemed terminated if he or she cannot work because of illness for 90 days. This can be a violation of the Ontario Human Rights’ Code (“Code”).

Even if you have been disabled for many months, or years, this does not mean that your employment is frustrated. Employers have a duty under the Code to accommodate employees with disabilities to the point of undue hardship. Only if you are incapable of performing the essential duties of your job, with accommodation, can the employer terminate your employment. You can bring a complaint against your employment under the Code.

For more information on termination pay and severance pay under the ESA, possible damages for wrongful dismissal or possible human rights damages, see our other blogs.

If you have suffered an illness or injury and are concerned about your employment status, contact us at inquiry@macleodlawfirm.ca or 647-633-9894.

This article was written by Nicole Simes. Nicole is an associate at MacLeod Law Firm and specializes in employment law for employees.