We were planning on terminating the employment of an employee who is a consistently poor performer when suddenly the employee went on sick leave. Can we still terminate them?
Unfortunately, terminating an employee on sick leave can pose a risk for the employer. You must be able to prove to the Commission des normes du travail that you would have terminated the employee even if they had not gone on leave. This means that you would need to have a well-documented file of repeated disciplinary actions in order to justify your decision, and there is always a risk that your documentation will not be considered sufficient. If you do not feel that you have a strong case you should probably wait until the employee returns to work and hope that their performance improves. If not, you should continue to build the employee’s disciplinary file upon their return.
If the employee’s sick leave becomes extended, the Act Respecting Labour Standards allows an employee with 3 months of service or more to be on sick leave for up to 26 weeks within a 12 month period (or more under certain circumstances). However, after the 26 weeks you could still have an obligation to accommodate the employee under other laws. Before terminating an employee on leave it is always recommended to consult legal counsel.
