Friday, December 3, 2010

The Wrong Reasons to Fire

Dismissed employees frequently call a lawyer (or others) to complain that “I was fired unfairly, even though I didn’t do anything wrong. How can they do that?”

To which my question is always, for more than one reason, “What did they offer you?”

Sometimes you’ll hear people wise in the ways of employment law say something to the effect of “Even without misconduct, an employer can terminate a non-union employee for any reason or no reason at all, on provision of appropriate notice or pay in lieu thereof.”

This is not precisely correct. Close, but not quite.

It is true that an employer does not need “just cause” to terminate an employee’s entitlement. Just cause, being significant misconduct or something comparable, is what allows an employer to terminate without providing notice. The test for just cause is high, though, and is often difficult for the employer to establish.

However, when there isn’t just cause, that doesn’t mean that the employer can’t terminate; it only means that the employer owes notice (how much depends on circumstances).

So it’s true that an employer can fire for no reason, but it isn’t true that the employer can fire for absolutely any reason. There are a handful of reasons that an employer, under Ontario law, cannot terminate the employment of an employee. The following is not necessarily a comprehensive list.

(1) Reprisals for standing on certain rights. If an employer terminates an employee because that employee inquired about rights under certain statutes, or attempted to stand on such rights, or brought proceedings based on alleged infringements of such rights (even if the proceedings are ultimately unsuccessful!), then the termination is illegal and could result in serious repercussions to the employer, including payment of amounts well in excess of the reasonable notice period. Statutes with anti-reprisal provisions include the Employment Standards Act, the Occupational Health and Safety Act, the Human Rights Code, and the Labour Relations Act. The anti-reprisal provisions under the first three are extremely broad, prohibiting any negative action whatsoever against an employee resulting from the employee standing on their rights under those Acts. Under the Human Rights Code, the anti-reprisal provision even covers an employee’s refusal to breach somebody else’s rights; under the OHSA, the anti-reprisal provision applies to the right to refuse unsafe work – even if the work turns out to be safe. Under the ESA, the anti-reprisal provision also covers such things as an employee being eligible to take leave; it’s not illegal to fire a pregnant employee (though it usually looks pretty bad), but it is illegal to fire an employee as a result of pregnancy. The LRA anti-reprisal provisions are a little bit narrower, but prohibit termination because of standing on rights under that Act.

I’ve cast these provisions as being very broad…and they are. However, it should be noted that the reprisal protection will usually only apply to bona fide assertions of right. So if I invoke the right to refuse unsafe work just to get out of work and not because I genuinely believe that it’s actually unsafe, then I risk non-application of the anti-reprisal clause. On the other hand, if I invoke the right to refuse unsafe work genuinely believing that the work is unsafe, and I'm wrong, then the employer retaliating against me for it is still a big problem for them even though I was wrong about the work being unsafe.

(2) The termination cannot be discriminatory or harassing on the basis of a prohibited Human Rights Code ground. If I’m fired directly or indirectly because of one of the prohibited Code grounds (think age, race, sex, creed, family status, marital status, place of origin, disability, etc.), that’s usually going to be illegal. There are certain exemptions, both on the basis of exempted organizations and “bona fide occupational requirements”. So the Catholic Church could probably justify refusing to employ somebody as a priest because the person is married, and a transport company could probably justify terminating the employment of a truck driver who became completely blind. But as a generality, such discrimination is problematic. The prohibition applies if the termination was in any small part motivated (directly or indirectly) by unlawful reasons: Even if I can demonstrate that I need to lay somebody off for legitimate business reasons, if my grounds for selecting the subject of the layoff triggers the prohibited grounds, I’m still in trouble.

(3) The termination cannot be as a result of membership in a union or participation in a union organizing campaign. A protection given under the Labour Relations Act. This one sometimes gets muddy: Participating in such a campaign does not guarantee job security, and quite often those who participate in such campaigns already have strained or otherwise weak relationships with the employer. Moreover, participation in such campaigns is usually not all that visible to the employer; these campaigns are carried out in secret. As with all the other protections, the question relates to the motivation of the employer – was the employer’s decision to terminate motivated, in whole or in part, by the prohibited reason? In these cases, it’s often a question of “Did the employer even know about the employee’s participation in the campaign?” As is normal, the onus is upon the employer to disprove the allegations.

Note that, as usual when dealing with Ontario statutes, I’m talking here about provincially-regulated employers (being most Ontario employers, except for certain industries including, among others, telecommunications, aviation, inter-Provincial/international transportation, etc.); the statutes regulating federal employers are somewhat different.

I always recommend that an employee facing dismissal seek legal advice on their entitlements before signing anything. (If you have signed something, I still recommend seeking legal advice. You’d be surprised how often an employer will have an employee sign a release which isn’t binding for one reason or another.)

For employers, I also recommend seeking legal advice when terminating employees, though I go a step further and recommend that employers seek legal advice pertaining to their hiring, employment contracts, and policy development and implementation. It is always much easier to terminate safely (as in, without risking significant liability) if you’ve managed the employment relationship properly from the outset, and when I say ‘the outset’, I mean starting right at the initial recruitment stages.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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