Wrongful Dismissal or Frustration of Contract?

October 4th, 2011 by

If an employee is off work for an extended period of time due to illness or disability, is the employer entitled to terminate the employment contract? Or would this be considered a wrongful dismissal?

A contract is frustrated when it becomes incapable of being performed when new circumstances arise, by no fault of either party, that would turn the contract into something completely different than what was initially contemplated.

To avoid a wrongful dismissal claim, the employer must prove that the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future.

In assessing whether an employment contract has been frustrated, the court will consider the following factors:

1) the terms of the contract;
2) how long the employment was likely to have lasted but for the illness;
3) the nature of the illness/injury;
4) how long the illness/injury had lasted and the prospects of recovery; and
5) the period of past employment.

If an employment contract is found to have been frustrated, the employer would have no common law obligations to the employee. However, the employer must still ensure that they comply with their obligations under the relevant employment standards legislation.

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