(905) 526-9800 or 1 (866) 526-9800 contact@rossmcbride.comA+ A-

Terminating employee on sick benefits

QUESTION:  About 4 months ago at a weekly management meeting of our company we made a decision, which was recorded in the minutes, to terminate the Comptroller immediately as a result of a number of performance issues.  I don’t know if he heard about the meeting or decision, it is unlikely, but within 12 hours he had submitted a doctor’s note and gone off ill.  We have not delivered the termination letter and have kept his benefits going. We don’t know why he is off.  When do we terminate? 
ANSWER: First, it sounds like you are well protected from any potential human rights complaint.  The decision was clearly unrelated to any disability leave assuming it could not have been foreseen at the time.  Technically you could have proceeded with the termination but I think you chose the safer and more compassionate course.

It may be that your Comptroller will submit a doctor’s note for return to work with a graduated return to work plan. I have seen employers allow the employee to complete the graduated return to work plan and then terminate the first day they are cleared for full time employment.

I think that is cruel and unusual punishment. I believe it is bad faith to allow them to work through a graduated return plan and then terminate.

When you do carry out the termination, I would advise your employee exactly when and why the decision was made.  One would usually not take that step but in this case it is important that he knows up front those details, otherwise he will assume it was because of his sick leave. 
Ed Canning
Ed Canning
P: 905.572.5809