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EMPLOYERS MUST BE VERY CAREFUL WHEN TERMINATING AN ILL OR NEWLY RECOVERED EMPLOYEE

Christopher worked for a railroad company for 31 years. At the age of 51, he suffered from a significant episode of depression.   Computerization was overtaking Christopher=s workplace and that was causing him stress and aggravating his depression.
 
Eventually, Christopher went off ill. Toward the end of the third month, his doctor indicated that he could return to work, initially on a part time basis. 
 
On his first day back to work, Christopher's manager advised him that, contrary to his expectations, he would only be allowed to work part time for one week and then would be expected to return to full time hours.
 
A few weeks later, she told him that she was disappointed in his performance since his return to work and that she had expected him to hit the ground running when he returned to work from his illness.  
 
Three weeks after Christopher=s return to work, he was told that he was being transferred to a position where he would be providing computer training to other employees on a new computer program.  Christopher told the boss that he was very concerned about taking on that job as he had no computer skills and the stress of the new responsibilities would likely set back his recovery from his depression.  He declined to do the job but indicated that he would consider a severance package. 

This is the point at which the employer made a huge mistake.  A few weeks later it terminated Christopher's employment. 
 
If it was smart, it would have offered Christopher a voluntary severance package to consider.  He would have continued working while he considered it and it would have been made clear to him that his employment was not being terminated.  Once a severance package was worked out and Christopher had signed a full and final Release, Christopher=s employment would have ended.  Given that Christopher had invited the employer to offer him a severance package, this approach would have made sense.
 
If Christopher and his employer could not agree on a severance package, the employer could always pull back and simply continue Christopher's employment.
 
If Christopher had accepted a severance package and signed a Release, he could not have filed the human rights complaint which eventually led to him being paid 80% of his lost salary for the 4-year period leading up to what otherwise would have been his retirement date.
 
When the matter went to a human rights tribunal, the employer tried to argue that since Christopher was healthy and approved for a return to work by the time he was eventually terminated, there could be no discrimination on the basis of a disability.  This is a silly argument that never works.  Employers who have terminated employees because they fear future absences,  or assume the illness will affect performance are discriminating against that employee, even if they are healthy at the time of termination. 
 
The employer also argued that the decision to eliminate Christopher=s decision was purely a result of ongoing restructuring.
 
When an employer terminates an employee soon after their return to work from a significant absence due to illness,  it will be up to the employer to prove that the elimination of the position was unrelated to the disability. 
 
Christopher's employer had no such proof.
 
Terminating Christopher's employment for legitimate business reasons unrelated to his disability would have cost the employer, at most, 20 to 22 months pay if Christopher could not find a job.  Once the human rights violation was found, however, that amount was doubled.  The lesson for employers, of course, is to tread softly and talk to a lawyer before terminating anyone suffering from a serious illness.
 
As published in the Hamilton Spectator, November 4, 2003