Avoiding stress caused by manner of dismissal

How can an employer avoid crossing the line between an employee’s normal distress at being fired an additional stress caused by the manner of dismissal, particularly if a dismissed employee is known to be emotional?

Avoiding stress caused by manner of dismissal
Brian Johnston

Question: How can an employer avoid crossing the line between an employee's normal distress at being fired and additional stress caused by the manner of dismissal, particularly if a dismissed employee is known to be emotional?

Answer: As a general rule, and regardless of the emotional proclivity of the employee, the mere act of termination does not create a cause of action, provided that the employee was given reasonable notice of their termination. The Supreme Court of Canada’s classic statement from Honda Canada Inc. v. Keays was: “The normal distress and hurt feelings resulting from dismissal are not compensable.”

There are, however, some situations where the conduct of the employer could result in a longer notice period and/or additional post-termination damages if a successful cause of action is brought by the employee.

The requirement to provide reasonable notice is meant to give the employee a reasonable opportunity to seek new employment (Evans v. Teamsters Local Union No. 31). What constitutes a "reasonable" amount depends, of course, on a myriad of factors in the specific circumstances of the employee and their employment, including age, length of service and the availability of alternative employment.

However, if the employer does anything to impede the employee's job search, including acting in a way that was so callous that the employee became unable to seek alternative employment or had their professional reputation damaged to the point of reduced labour-market attractiveness, the length of notice that will be deemed to be "reasonable" may be extended. The ability to avoid these situations is well within the control of employers and care should be taken by the employer to ensure that these situations are avoided when terminating an employee.

Where an employer terminates an employee in such a way that it causes the employee to suffer mental distress, a court may award that employee with additional damages. These damages are only recoverable, however, if the mental distress arose from the manner of termination, including a failure to give reasonable notice, rather than the simple fact that they were terminated. This is true even if the employer anticipated that the act of termination would cause mental distress to the employee or that the employee would bear additional stress from the difficulty of finding alternative employment, so long as the employer does not perpetuate that distress by terminating the employee in a way that is unfair or in bad faith (Nelson v. Champion Feed Services Inc.; Trask v. Terra Nova Motors Ltd.).

Courts have also awarded damages where terminated employees have suffered mental distress as a result of an employer's "wanton or reckless breach of the employment contract." This has been found in cases where, in the course of termination, employers have made unfounded allegations of dishonesty, lack of competence or just cause that is unsupported by evidence, where they failed to give reasons for the termination, where employment was terminated over the phone while the employee was sick or otherwise incapacitated, where they failed or refused to give references and where the termination was abrupt and insensitive (Jivrag v. Calgary (City); Rahemtulla v. Vanfed Credit Union).

Ultimately, if an employer terminates an employee with reasonable notice and in a way that is fair and in good faith and not hindering that employee's ability to seek or gain alternative employment, it is unlikely that the employee would have a cause of action against the employer, regardless of their emotional proclivity. This does not mean, however, that the employer should not take extra care to ensure that particularly emotional employees are provided with reasonable notice taking into account their individual characteristics.

For more information, see:

  • Honda Canada Inc. v. Keays, 2008 SCC 39 (S.C.C.).
  • Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (S.C.C.).
  • Nelson v. Champion Feed Services Inc., 2010 ABQB 409 (Alta.Q.B.).
  • Trask v. Terra Nova Motors Ltd., 1995 CanLII 9836 (N.L. C.A.).
  • Jivrag v. Calgary (City), 1986 CanLII 1701 (Alta. Q.B.).
  • Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (B.C. S.C.).

Brian Johnston, Q.C., is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected]

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