There are plenty of reasons to dismiss an employee, but protected human rights grounds aren't on the list
There are many reasons for an employer to terminate an employee. If an employer wants to allege just cause — which can be a high bar — it could be for a number of types of misconduct such as theft, insubordination, excessive absenteeism, or harassment of co-workers.
If there is no cause for dismissal, that’s fine, too — as long as the employee is given notice or pay in lieu according to the common law or whatever a valid termination clause specifies. However, something that employers have to be careful of, whether in a for-cause dismissal or a without-cause dismissal, is the dismissed employee’s human rights.
There are several personal characteristics that are protected from discrimination by human rights legislation. You’re probably familiar with most of them — grounds such as race, place of origin, sex, creed, family status, for example.
In the employment context, employers can’t fire someone on the basis of any protected human rights ground. But what can be tricky is if the employer has other reasons for dismissal but somewhere in there, one or more is tied to a protected ground. If that’s the case, it’s going to be a discriminatory dismissal, regardless of any legitimate reasons the employer may have.
Alberta, Ontario cases highlights challenges
In a recent Alberta case, a law firm fired a legal assistant because she had been absent too many times — 13 days in just over three months — and it had concerns over her job performance. The firm needed someone present each day until a certain time, so the absences created difficulties. For most of the absences, the legal assistant indicated the reason for her absence — sometimes she just wasn’t feeling well, but a couple of times it was to care for her child, as she was a single mother. When she was fired, she was off work following a short hospital stay.
The Alberta Human Rights Tribunal found that the dismissal was discriminatory because some of the absences for which she was dismissed were related to family status — caring for her child — and disability from her medical condition causing hospitalization. The firm should have inquired about accommodation options before terminating her employment, said the tribunal.
Several years back, an Ontario employer terminated an employee and asserted that it was reducing staff as the result of a decline in business. However, at the time, the employee was on medical leave for hip replacement surgery. The Ontario Human Rights Tribunal found that the employee’s medical condition requiring surgery was a disability and the disability-related absence was a factor in the decision to terminate five days before the surgery, despite any other business-related reasons the employer may have had.
Termination for cause still possible
Just because protected characteristics exist, it doesn’t mean an employer can’t terminate an employee for legitimate reasons — again, as long as those protected characteristics aren’t a factor in the termination.
A couple of years ago, a B.C. worker who was originally from India and had a back injury claimed that his termination was discriminatory on the basis of physical disability, race, and colour. The B.C. Human Rights Tribunal dismissed his claim, pointing to the employer’s extensive documentation of performance concerns raised by various supervisors and colleagues over several years. In addition, the worker didn’t request any accommodation for his physical disability and there was no evidence it was related to his performance issues, the tribunal said.
Termination reason can also be legitimate despite an employee’s claims of discrimination. An Ontario worker was granted a leave of absence to care for her son, who had mental health issues. The employer granted an extension of the leave, but it declined to provide a second extension as the worker didn’t provide any medical documentation. It considered the worker to be on unauthorized leave and told her that if she didn’t provide medical documentation, it would consider her to have abandoned her position.
The worker was terminated for cause and she claimed discrimination based on family status and disability — the latter related to a scent sensitivity she had raised though she had provided no supporting documentation. The Ontario Human Rights Tribunal dismissed the claim, finding that the employer’s request for information to support her leave request was reasonable and the worker had an obligation to participate in the accommodation process.
Terminations of employment happen all the time and employers are free to dismiss employees for cause or without cause with notice. But either way, they had better be sure that, regardless of the reasons, not a single one is related to a human rights-protected ground.
