Disability not a crutch for unsatisfactory workers

"Employees with disabilities are protected from being fired for having those disabilities, but they aren’t protected from performance expectations."

Employees with disabilities are protected from being fired for having those disabilities, but they aren’t protected from performance expectations - as shown in a recent B.C. case involving a medical office. REUTERS/Regis Duvignau

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.

Click here to read how the Doctor was in the right......

Article Spotted by: Kathryn Benson
Article Written by: Jeffrey R. Smith
Article Published: August 8 2017 / HR Canadian Reporter