Frustration of Contract

The employee needs to communicate more than a desire to return to work. The employee must demonstrate ability to return to work to trigger the duty to accommodate. The court found that the employer was correct to treat the relationship as being frustrated, when the employee did not supply twice requested medical information. 

Discusses a recent case were the Court held extension of an employee’s long term disability benefits was sufficient for the employer to conclude there was no reasonable likelihood that the employee would return to work in the foreseeable future, thus concluding the contract was frustrated as the employee could no longer perform its employment responsibilities due to the unforeseen situation. 

Court held that employer only had to show that there is “enough evidence” to conclude there is no reasonable likelihood of the employee returning in a reasonable period, instead of the previous standard required evidence of permanent disability and the employer was not required to make further inquiries but could rely on the documentation it had received to conclude the employment contract was frustrated.

Article discusses distinctions between innocent and culpable absenteeism and when employees can be terminated for chronic absenteeism, requirements of an employer attendance management plan and distinguishes counselling from progressive discipline. 

The court held the employer could conclude there was no reasonable likelihood of the employee returning to work within a reasonable period of time, based on the extension of Long Term Disability  Benefits. Being on Long Term Disability Benefits does not preclude an employee from being terminated for being absent.