Q. When an employer alleges termination “for cause”, how does the Duty to Accommodate come into play? If the employee can show the termination was a wrongful dismissal, can she receive Severance pay?

A. Our client, Ms. A, was a long term employee, who was ultimately terminated “for cause”. She had worked for her company for over 20 years and had good performance reviews until she became sick. Her sickness prevented her from completing her duties on time. She eventually went on Short Term Disability.

Unfortunately, she returned from her disability leave too early, and was still unable to complete her tasks on time. There were also extended periods of time when Ms. A failed to sign in to her work account, and the employer claimed that she did not advise her supervisor of any medical problems during that time.

Her employer, a large federally regulated business, ultimately terminated her “for cause”.

When Ms. A came to us, the key questions that we focused on were the employer’s duty to accommodate, and specifically:

• whether the employer reached out to Ms. A to see how she could be accommodated
• whether the employer had performed an ergonomic assessment
• what the employer’s policies were with respect to employees that return from sick leave

After examinations for discovery of the employer, it was evident that the employer took the position that, unless an employee asked for accommodation, none would be provided. This position is wrong at law. An employer has a duty to accommodate that goes beyond simply sitting back unless they’re asked for accommodation.

The Ontario Superior Court said in ADGA Group Consultants Inc. v. Lane, (2008) 2008 CanLII 39605 (ON SCDC),

The procedural duty to accommodate involves obtaining all relevant information about the employee’s disability, at least where it is readily available. It could include information about the employee’s current medical condition, prognosis for recovery, ability to perform job duties and capabilities for alternate work. The term undue hardship requires respondents in human rights cases to seriously consider how complainants could be accommodated. A failure to give any thought or consideration to the issue of accommodation, including what, if any, steps could be taken constitutes a failure to satisfy the “procedural” duty to accommodate.

Ultimately, the parties went to mediation, where we were able to obtain a significant settlement for our client.