Can my employer fire me while I am on leave?

It is possible for your employer to terminate your employment while you are on leave, but only in certain circumstances. Specifically, your employer could terminate you if:

1. your termination is unrelated to your medical leave;
2. you are terminated for reasons which sufficiently establish just cause; or
3. your employment contract has been frustrated.

An employer cannot terminate you if even a small part of the reason is related to your disability. If an employee’s disability was, in any way, a factor in the decision to terminate you while on leave, the termination is discriminatory. It would amount to a breach of your employer’s obligations under the Ontario Human Rights Code.

Terminated for cause while on a medical leave

If an employee is terminated without cause for reasons unrelated to their disability or medical leave, the termination is legally permissible, and they would be entitled to notice or pay in lieu of notice (also known as severance pay).

If, while on leave, an employer discovers or determines that an employee has taken actions sufficient to establish cause for termination, it is possible that an employee could be terminated even though they are on leave.

The standard which must be met in these circumstances is very high – specifically, your employer would have to prove that you are guilty of “willful misconduct, disobedience, or willful neglect of duty which is not trivial and is not condoned by the employer”. While this is a high threshold to meet, if your conduct was so extreme that this threshold can be met, your employer is not required to provide severance.

What is a frustration of contract?

Frustration of contract occurs when, without fault on the part of either party, the terms or obligations of your employment agreement cannot possibly be fulfilled. If your employer can establish that the contract of employment has been frustrated, you can be terminated while on leave. This may be unlikely if the employee has taken a short leave.

However, when a leave of absence is very long, it could be possible for the employer to establish frustration of contract. It could be that the employee’s medical circumstances are such there is no reasonable chance of them ever being able to return to work.

How difficult is it for an employer to fire an employee for frustration of contract?

As with termination for cause, this is a very high threshold to meet. It requires that the employee will be unable to return to work, making it impossible for the employer and employee to fulfill the terms of the contract. It could also be that the employee’s circumstances mean that the performance of the contract would be radically different than what had been agreed upon. If the frustration of contract is established, your employer is only required to provide you with your minimum statutory entitlements to severance pay.

Have you been fired while on leave?

If you were let go while you were on a leave of absence, you should speak to an employment lawyer to discover your rights. An employment lawyer can explain your options and enforce your rights. Contact an employment lawyer at Samfiru Tumarkin LLP, and get the compensation you deserve.