In earlier posts here and here, we discussed attendance management policies. When an employee is absent for a sufficiently lengthy period, an employer may eventually rely upon the legal doctrine of “frustration”, and terminate employment. (A similar concept for union employees is known as “innocent absenteeism”.)
The doctrine of frustration of contract operates as a complete defence to wrongful dismissal (breach of contract) claims and human rights complaints in British Columbia. If an employee is absent from work for a long enough time due to disability, the law may recognize that their employment contract is at an end, through no fault of either party. The employee can simply no longer work. In determining this, the courts or a human rights tribunal will ask whether the disability prevents the performance of the essential functions of the employee’s job for a period of time sufficient to say that, in a practical or business sense, the object of employment had been “frustrated”.
Regular communication with the employee is important during lengthy absences. Too often, employers do not follow up to obtain status updates, and after several months decide they want to take action. Without updated medical advice from the employee and their physician, there is delay while the employer tries to determine whether the employee has a prospect of recovery in the foreseeable future.
How long an absence does it take before frustration of contract can be alleged? The answer varies from case to case, and legal advice should be sought to avoid liability for alleging frustration when the factors don’t meet the high test. The law requires a careful assessment of the facts of each case.