Employee disagrees with reason for dismissal

What happens if an employee disagrees with termination letter or ROE?

Employee disagrees with reason for dismissal

Question: What happens if an employee disagrees with the reason for dismissal in a termination letter or a record of employment?

Answer: An employer’s reasons for termination in a termination letter and record of employment, such as whether the employee’s termination was with or without cause, can have an impact on an employee’s ability to obtain new employment and receive employment insurance or other compensation or benefits. Employees have several options available to them to challenge the reasons for termination, including in circumstances where they disagree with what is contained within the termination letter or record of employment.

First, the employee may raise the termination letter directly with the employer in an attempt to come to an agreement regarding what is contained in the letter. In some cases, employers and employees may be able to come to a satisfactory resolution through such a discussion, avoiding further action entirely.

Second, if the employee and employer are unable to agree, the employee may commence a civil action by bringing a wrongful dismissal claim. There are generally limitation periods that vary province by province for employees to bring a wrongful dismissal claim. If an employee is successful in a wrongful dismissal claim, they will be awarded damages for the losses they have incurred as a result of the employer’s breach.

Third, the employee may bring a human rights complaint to the human rights commission in circumstances where it is alleged that their termination of employment was based on a prohibited ground, such as disability, gender or race. The limitation period for commencing a human rights complaint is determined by the governing provincial or federal human rights legislation applicable to the employee, depending upon their jurisdiction of employment.

Fourth, in unionized contexts, the union may grieve the termination on behalf of the employee. The timing and conduct of a grievance will depend on the particular collective agreement, but, typically, an arbitrator will make a determination of whether the termination accorded with the terms of the collective agreement as well as any relevant provincial statutes that have been incorporated into the collective agreement.

With respect to the record of employment, the employee may challenge the reason for termination on a record of employment directly through the Service Canada website. The record of employment is particularly important to an employee’s ability to receive employment insurance benefits.

The Employment Insurance Act provides for benefits to be made to insured persons who have had an interruption of earnings from their employment and who have worked the requisite number of hours. An employee who has lost their employment through their own fault, either for being dismissed for misconduct or voluntarily resigning, may not be eligible to receive regular employment insurance benefits.

Employees whose applications for employment insurance benefits are rejected by Service Canada may submit a request for reconsideration within 30 days. An agent may contact the employer and employee in assessing whether a record of employment disposition was appropriately made. The agent’s decision may also be appealed to the Social Security Tribunal of Canada. The employee has 30 days after the agent communicates their decision to file an appeal.

Given the significance of the disposition of termination for both the employer and employee, it is important for employers to carefully consider the nature of the termination (i.e., did the employee resign, was the employee terminated for cause or was the employee terminated without cause). Since the reason for termination may be subject to various claims and challenges, it is important that the reason for termination is appropriately determined at the outset.

Amy Gibson is an associate with MLT Aikins in Saskatoon, practising general labour and employment law. She can be reached at (306) 956-6994 or [email protected]

Latest stories