It is no state secret that no time is a good time for an employee to be fired, especially after holding down a job for years on end. As an employment lawyer, I have helped employees who faced a termination of employment (wrongful dismissal) after as much as 43, 44 and even 54 years!
In nearly every case, the impact of losing a job is significant. For most employees, an involuntary job loss is one of the most traumatic events. In addition to the extremely stressful reaction to a job loss, employees often experience significant financial consequences when their employment is terminated. However, when it comes to a wrongful dismissal, it often means much more than losing income. Oftentimes, it means losing a normal routine, professional relationships and sense of belonging and being a productive member of society. As one court put it:
Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.
This anxiety, coupled with difficulties of finding a new job amid the uncertainty caused by the ongoing pandemic, can take a heavy emotional toll even the most even-keeled employee.
While for most employers firing an employee is one of the hardest things they have to do, it is sometimes a necessary decision they have to make from a business perspective. When employers do make the decision to termination employment, it is crucial they consider the timing and circumstances. In fact, many court decisions have held employers to account for firing an employee in an unfair and unprofessional manner. Among other things, this means avoid being insensitive and inconsiderate in the way an employee is dismissed from their job.
In this blog, we cover a few scenarios where it would be imprudent for employers to terminate employment.
Examples of Times for Employers to Delay Termination of Employment
1. Firing an Employee During Religious Holidays
Whether it is during Christmas, Hanukkah, Ramadan or Diwali, an employer who fires an employee invites a greater likelihood of being sued for wrongful dismissal. There is perhaps nothing more disheartening and depressing than losing your job during the holiday season, which makes it prudent for employers to exercise caution if they have to let someone go during the holiday season. For example, in Zesta Engineering Ltd. v. Cloutier, 2020 ONSC 5810, the court referred, among many other bad faith behaviour, to the fact that the employer wrongfully dismissed the employee in the middle of the holiday season, in its decision to award the employee $75,000 in moral damages. In the court’s own words:
Durante was dismissed over the telephone, on his first day of vacation, five days before Christmas, for confirming the “sting” on Marcel Jones. In effect, he was fired for telling the truth or, to put in another way, for choosing the wrong side in a vicious dispute rooted in family issues.
2. Employees on a Leave of Absence, such as Maternity Leave
Under Ontario employment law, it is not illegal for an employer to fire an employee during a medical leave of absence or maternity leave. Even so, employers should always be careful when carrying out a termination when an employee is on a job-protected leave of absence allowed for under employment law. For instance, the following legislation makes it clear employers cannot punish employees because they have chosen to exercise their legal rights in some circumstances (reprisal), which can include making fundamental change to the employee’s job (constructive dismissal) or fire an employee (wrongful dismissal):
- Employment Standards Act, 2000 – employees are allowed to request or ask about about pay issues or other legal entitlements, as well as to take a job-protected leave of absence, such as vacation leave, parental leave, pregnancy leave or medical leave of absence, as well as the right to return to their same (or a comparable) job upon their return.
- Human Rights Code – employers have a “duty to accommodate” (support) an employee who suffers from a disability (health issue) or family status (childcare or eldercare obligations) to the point of “undue hardship.” If an employer fails to accommodate an employee’s human rights grounds, an employer may be required to pay an employee human rights damages for injury to their dignity, feelings and self-respect.
3. Employers Firing an Employee for Complaining About Workplace Harassment
The Occupational Health and Safety Act makes it illegal for employers to punish an employee (such as a wrongful dismissal) for asking the company to comply with their legal and regulatory obligations to protect them from health and safety dangers at the workplace, such as workplace harassment.
4. Employers Firing an Employee to Avoid Paying Upcoming Bonus or Commission
In most severance package negotiations, a crucial sticking point is an employee’s entitlement to unpaid bonus or commission. Under Ontario employment law, employers are required to provide an employees with all of the compensation they would have earned during the reasonable notice period. As the Supreme Court of Canada recently put it, the “purpose of damages in lieu of reasonable notice is to put the employee in the position they would have been in had they continued to work through to the end of the notice period.” This means that a severance package (or damages for wrongful dismissal) means paying an employee their full base salary, health benefits, pension benefits as well as bonus pay and commission.
Consequences for Employers – Bad Faith, Punitive Damages and Discrimination
If an employer’s conduct during a dismissal is unfair or unduly insensitive, such as by engaging in some of the examples above, it could and leads to an employee’s mental suffering, that employer could be forced by a court to pay an employee “moral” or “aggravated” damages, especially if it causes an employee to suffer considerable stress or depression. Some examples? The court in a recent case called Russell v. The Brick Warehouse LP, 2021 ONSC 4822 offered the following circumstances that could result in employers’ being on the hook for paying employees additional money (on top of severance pay) for unfair dealings during the course of a wrongful dismissal:
(a) an employee failing to provide a severance package that meets all of the employee’s statutory entitlements, including termination pay, benefits continuation, severance pay, vacation pay and bonus pay accrued over the course of the statutory notice period;
(b) a lack of transparency and fair dealing by an employee during the employee’s termination process, such as by failing to advise the employee they would still be provided with their full statutory minimum entitlements, including termination pay or severance pay, even if they chose to reject their original severance offer and negotiate a severance package through an an employment lawyer.
(c) a lack of honesty, transparency and fair dealing by an employee during the employee’s termination process, such as by failing to advise the employee that their health benefits would be continued for at least the minimum statutory notice period, regardless of whether the employee chose to accept or reject the employer’s original severance package
(d) an employer’s bad faith or unfair conduct causing an employee to suffer mental distress beyond the usual hurt feelings and distress that come with being dismissed from a job, and which the employer should have foreseen would result from its lack of honest, transparency and fair dealing during the manner of dismissal.
Bune Law Can Help
As a Toronto employment law firm in Toronto, Bune Law, Toronto employment lawyer, can assist with all types of workplace disputes, including wrongful dismissal claims. Since each employment termination is different, it is important to consult with an experienced employment lawyer before you take any action that can effect the work situation. In most cases, an employment lawyer is able to resolve wrongful dismissal disputes through a negotiated settlement with employers. However, where litigation is necessary, Bune Law is strong, firm and will pull no punches in moving the matter to the courts for a fair and proper resolution.
Want to know if you have a case of wrongful dismissal or constructive dismissal? If you believe you were wrongfully dismissed, Bune Law can help you to obtain the best possible settlement by negotiation and, if necessary, fight your dismissal in court.
Call Employment Lawyer Now
It is important for an employee (or an employee) to obtain a legal consultation before taking any action that could affect the situation at workplace. Bune Law, Toronto employment lawyer, has significant experience and expertise advocating for both employers and employees, which allows him to anticipate the other side’s arguments and develop an effective strategy.
If you are looking for a wrongful dismissal lawyer in Toronto, call Bune Law, Toronto employment lawyer, today at 647-822-5492 for a case evaluation with an experienced employment lawyer.
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