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Firing Employees on Disability

For employees, seeking to qualify for long term disability, they face the problem that insurance companies likely spend as much money fighting not to pay benefits as they spend on benefits. Most insurance policies require that the employee prove that he or she cannot perform the substantial duties of the employment. That in most policies only gets long term disability payments for the first two years. Typically after that, the employee has to show that they cannot hold any kind of employment.


An auto mechanic no longer able to turn a wrench will not lose out on long term disability on the basis that he could be a stock analyst. The auto mechanic will not have that education. But the insurance company might argue he could become a security guard. The fact that his earnings will be cut by 70% will result in a partial disability payment. But the difference between showing you are unable to work in your own employment as opposed to any employment is significant.


Workers Compensation plays the same tricks.


CPP Disability benefits may be available. But usually long term disability payments deduct the CPP and sometimes the insurance companies will argue that if you cannot get CPP you cannot get long term disability.


If added to this misery, your employer gives up and fires you, this not only leads to a loss of hope which impacts upon your recovery, but makes your financial future even more bleak.


From the employers view, and depending upon the nature of the employment, when may employees be terminated, while sick or on disability is also troubling. Smaller businesses in particular will have replaced the disabled employee. The replacement may be better than the person on sick leave.


The law seeks to protect the employee but recognizes the problems facing employers.


Your employer will want to know the nature of your illnesses but does not want to pry. Communications to the long term disability carrier about your medical condition and the reports of doctors will not have been shared with the employer.


The law, seeking fairness to both sides, generally holds that if it appears likely that you will not be able to return to work in a reasonable period of time, then the employer may terminate your position.


People fail to understand that employers may fire an employee for no reason at all.


In understanding the law, remember that if you are a union member you have no rights other than what the union contract has given you. If fired, you can go to the union to protect you but you cannot take the case to court. Generally describing the way the law functions in the result is not a description that covers unionized employees.


For non unionized employees, suppose you have worked for a company for ten years. If the owners of the company, get up one morning and decide they are going to fire you because you have blue eyes and they prefer brown, they may do that. Employees may be fired for any reason, unless the firing has something to do with discrimination. You may not be fired because of your sex, because of your religion, because of your nationality; there are some prohibitions against dismissal based on discrimination.


But you may be fired because the owners have decided they want to go in a different direction or get more energetic people or hire somebody younger and in the result more cheaply.


However, as an employee, you have some protection from the law. It is not protection against not being fired but you will be able to get compensation.


Generally, if someone is fired, not with cause, the employee will be able, through the courts, to get about one month’s salary and benefits for every year of employment. In the example, having worked there for 10 years, the employee going to court will get almost a year’s salary and benefits.


If that employee is fired for cause, the employee will get nothing in the way of compensation from the employer.


The issue, if fired while away from work because of illness or disability, is that the employer will not have to pay severance, and the employer will be able to do that if it is probable he will not be able to return to work. Employers are not expected to have to wait even three or four or five years for the employee to return and the courts in trying to be fair to employers as well as employees will, in that instance, allow a termination without compensation.

About Donald I.M. Outerbridge

Donald became the Executive Director of Merchant Law Group LLP starting in 1993, nearly 30 years ago. His experience managing law firms at various levels and in multiple provinces across Canada goes back even further to 1981.

Please note: The information provided on this website is Not Legal Advice. The information may or may not be accurate. The information is for discussion purposes only. Reliance upon any information provided would not be grounds to advance a claim against Merchant Law for providing any advice. In order to get a formal legal opinion upon which you may rely about any specific fact scenario, you would have to first retain the services of a lawyer and request a formal legal opinion.