Dismissing an employee where a protected ground may apply

Exclusive to Canadian HR Reporter from Rudner Law.

The holiday season is fast approaching and with it comes the canon of holiday movies. One of my favorites of these is Bad Santa, where Billy Bob Thorton plays a safecracker who robs department stores with his colleague, played by Tony Cox.

One scene in particular stood out to me on a recent rewatch. The store’s manager wants to fire Thorton and Cox’s characters but is hesitant to do so as he is concerned that it will result in a claim of discrimination against the store. Cox is Black and a little person, and Thorton has already told the manager that they intend to make things difficult for the store if they are dismissed.

The manager works with the head of the store’s security to try to track down a basis for this dismissal.

Concerns about wrongful dismissal

Believe it or not, this at least partially resembles a situation that our clients encounter on a regular basis. The employer wants to dismiss an employee and, unlike Thorton’s manager, has a legitimate business case to do so.

However, the employee is either covered under a protected ground under human rights law, or has made a complaint under an employment or health and safety statute — none of which have any connection to the business-related reason for dismissal.

The employer is rightfully concerned that this dismissal will lead not only to a wrongful dismissal complaint but also a claim for human rights damages or a separate claim of reprisal.

We always advise clients that a dismissal in these circumstances is possible if done carefully, but will always come with some risk, even if the employer has taken every necessary step before proceeding. 

Protected grounds and dismissals

An employee whose employment is terminated without cause is entitled to reasonable notice of the dismissal. The entitlement to this notice can be limited by a properly drafted and implemented employment agreement.

The amount of this notice is based on the court’s assessment of how long it is likely to take for the employee to find another job, based on the Bardal factors, such as the employee's age, length of service, and character of employment.

Where the employee can show that the dismissal was due to their status under a protected ground (such as a disability or their ethnicity), the employer may be found to be liable not only for the employee's notice entitlement but also for damages for having breached the employee's human rights.

Risks of reprisal claims

Alternatively, if the employee has made a complaint under an employment, health and safety, or human rights statute and is subsequently dismissed, the employee may claim that the dismissal was in reprisal for having exercised their rights.

This can lead to a complaint of reprisal, which can either be a basis for additional damages in a wrongful dismissal claim or a process before a labour tribunal, where the remedy is typically reinstatement.

This will be the case even if the employer had other reasons for the dismissal: if a reviewing body determines that the decision to dismiss was even partially related to the employee's circumstances, it will likely become a basis for damages.

Outlining reasons for dismissal

An employer dismissing an employee where it believes that the above will come into play will need to have a reason for the dismissal that is not connected with the protected ground or the complaint. This can be performance-related (without being cause) or business-related, such as the deletion of the employee's position.

The employer will need to be able to show that its decision to dismiss was entirely unrelated to the employee's personal circumstances or complaint. This may be done via testimony if the matter results in litigation.

However, the safest way to do this is to have something in writing on file regarding the decision prior to proceeding. There is not one universally accepted format for this type of document; an email between parties outlining the basis for the decision to dismiss may be sufficient.

If the employee had performance issues, a record of the employee's performance and the employer’s interventions may also be enough.

Risks of bad faith damages

The basis for the decision to dismiss should not come up in the course of the dismissal meeting. Where the dismissal is without cause, citing a reason for the dismissal may lead to a claim for bad faith damages by the employee. The basis for the dismissal will only come into play where the employee challenges their dismissal and chooses to assert that the employer’s decision to dismiss was for improper reasons.

The employer should be prepared to explain the reasons for the dismissal and demonstrate that it was unrelated to any inappropriate  ground. This can help to convince the former employee (or their counsel) that their chances of success with a claim are minimal.

However, if this does not, and the matter goes to litigation, this information will be entered with the goal of convincing the court or any other reviewing body that the employer did not breach the employee's rights.

This may not be successful in every case, but represents a defence where none may otherwise exist.

Takeaways for HR

It is possible to dismiss an employee where a human rights claim or reprisal complaint is a concern. However, this needs to be done with care and with the risks associated with doing so in mind. Even then, there is no guarantee that a court will accept the employer’s claims.

It is crucial to note that this process should and can only be done where the employer has a legitimate reason to dismiss the employee. It cannot be used to contrive a basis to dismiss an employee who is otherwise covered under a human rights statute or has made a complaint against the employer.

Doing so will likely lead to the employer facing additional damages as well as a negative reputational impact for attempting to sidestep the statutes protecting an employee.

Geoffrey Lowe is an associate lawyer at Rudner Law in Toronto. He can be reached at (416) 864-8500 or [email protected].