The end of accommodation? Frustration of the employment contract as a last resort

One of the goals of legislation such as the Accessibility for Ontarians with Disabilities Act (“AODA”) and the Human Rights Code (the “Code”) is to promote accessibility and accommodation in various forums, including the workplace. However, when it becomes clear that, despite accommodating an employee to the point of undue hardship, a disabled employee will never again be able to return to his or her job or be accommodated in another position, what can an employer do?

The takeaway from the blog last week

There are several issues that employers should consider before treating a contract as at an end due to frustration. Employees, especially those who had longer periods of service before becoming disabled, are likely to make claims for wrongful dismissal in attempts to access their entitlement to common law reasonable notice. Such claims can be time-consuming and costly to defend.

Parenthetically, where frustration has occurred as a result of disability, employers must still pay employees their minimum entitlements under the Employment Standards Act.

It would be prudent to consult with an employment lawyer before making the determination that an employment contract has been frustrated. Where employers get it wrong, they are exposed to liability for wrongful dismissal, and potentially for violating the employee’s right to be free from discrimination based on disability.

What are the frustrations you have in implementing the AODA?

If you are interested in learning more about Accessibility for Ontarians with Disabilities Act (AODA) or how to make accessibility a natural part of your business through the application of Corporate Social Responsibility, please contact Sandra Broekhof @ 416-579-1035 orsandra_broekhof@sympatico.ca