Dismissal

Employment Not Frustrated by 16 Month Absence

The BC Supreme Court recently held that an employee was wrongfully dismissed when he was denied his job after a 16 month absence to recover from injuries that he suffered in a motor vehicle accident.

The plaintiff, a forklift operator, was a 20 year employee when he went off on sick leave after an accident in July 2005. When he asked in November 2005 for a letter confirming that there were no light duties available for him at the mill where he worked, the employer concluded that he was chronically ill and would not be able to return to work. A replacement was hired to permanently fill his position. The parties then had little contact until November, 2006, when he attempted to return to work and learned that his position had been filled. He sued for wrongful dismissal.

The Court rejected the employer’s claim that the employment relationship had been frustrated and brought to an end. The Court noted that the employee’s illness was temporary and he was always expected to recover, despite his lengthy absence. The employer had tolerated longer absences by other employees in the past. In addition, the employer had been able to accommodate the plaintiff’s absence by hiring temporary employees and there was no evidence that this accommodation could not have continued.

The Court’s decision is a useful reminder to employers that a disabled employee’s right to return to his job may continue for a long time after his departure from the workplace.

Sandhu v. North Star Mills Ltd.,2007 BCSC 1222