The contract law doctrine of frustration may provide employers with a solution to the problem of the long-term or serially disabled employee who is seldom at work, or entirely absent, for years at a time. The Human Rights Tribunal of Ontario’s recent decision in Gahagan v. James Campbell Inc. stands for the principle that terminating the employment of a permanently disabled employee by reason of frustration does not necessarily constitute unlawful discrimination.

In Gahagan v. James Campbell Inc., the employee sustained a workplace injury in 2009. The employee’s significant physical restrictions and limitations prevented her from returning to work. Instead, the employee received workplace safety and insurance benefits, long term disability (LTD) benefits and Canada Pension Plan (CPP) disability benefits. When the employer terminated her employment 2 1/2 years after the injury, the employee alleged unlawful discrimination on the basis of disability.

The Tribunal concluded that the employee’s employment had been frustrated and dismissed her complaint. The Tribunal relied on the facts that:

1. the employee had significant physical restrictions and limitations which prevented her from working; and

2. in order to receive LTD and CPP disability benefits, the employee herself had professed both an inability to perform her job and a severe and prolonged disability.

The period of time over which any individual employee’s contract of employment has become frustrated will, of course, depend on the specific facts of the case. However, the Tribunal’s finding that frustration may result after 2 1/2 years of disability may be encouraging to employers who have been managing lengthy employee absences.