Employers can’t avoid human rights complaints by providing notice, nor can they discount a notice period for poor performance or conduct
By Stuart Rudner
There are two common misconceptions in the HR world that need to be cleared up.
One: An employer can avoid a human rights complaint simply by providing the appropriate amount of notice of dismissal or pay in lieu thereof.
Two: An employer can discount the amount of notice of dismissal required if the employee’s conduct or performance was not up to par.
Human rights
The existence of the first misconception was made clear to me as I recently corrected the final exams for the HR Law for HR Professionals course that I am the director of at Osgoode Professional Development in Toronto.
The exam included a question in which a long-term senior waitress was seen by her manager to be “slowing down” and not performing as well as she used to. The exam also suggested the drop-off in her performance may have been attributable to her age, a protected ground under human rights legislation.
In many of the responses I received, the students (HR professionals) went through an appropriate analysis of how to deal with the situation, recognizing both the issues relating to dismissal for cause and the potential human rights concern. However, in many cases, the students concluded their analysis with a suggestion along these lines: “In order to avoid a human rights claim, I would recommend that we dismiss the waitress with the full amount of notice/pay in lieu thereof required by statute and common law.”
The underlying assumption behind these suggestions is flawed. There seemed to be a prevalent view that if the waitress in question was dismissed for cause, she could allege discrimination based upon a prohibited ground, but if she was simply dismissed on a without cause basis and provided with notice or a “package,” then she would not be able to bring a human rights complaint. This is completely false.
The issue of whether or not the appropriate notice of dismissal was provided is entirely distinct from the issue of whether an individual has been discriminated against contrary to human rights legislation.
Regardless of the amount of notice/pay in lieu provided, the human rights tribunal can find the employer breached Ontario’s Human Rights Code by discriminating against an employee on the basis of a protected ground. Simply providing the amount of notice that would be required in any dismissal without cause situation will not protect the employer from a human rights complaint. If the dismissal was based, even in part, on a protected ground, then the employer will be in breach of the legislation. This is true whether the dismissal was carried out on a with cause or without cause basis, and regardless of any notice or payments provided.
No such thing as ‘near cause’
The second misconception relates to the concept of “near cause.”
Simply put, there are two forms of dismissal — with cause and without cause. If the dismissal is without cause, then notice of dismissal or pay in lieu thereof must be provided. If there is just cause for the dismissal, then there is no obligation to provide notice or pay in lieu (save and except for the possible exception of situations where just cause exists but the employee is not guilty of wilful misconduct — then the Employment Standards Act requirements in the event of dismissal would still apply).
There is a common view that when an individual was not an ideal employee but the misconduct and/or poor performance did not rise to the level of just cause, then the employer can provide less notice of dismissal or pay in lieu thereof then they would for a “good” employee.
This concept of near cause has been explicitly rejected by Canadian courts. Just cause is an all or nothing proposition in this country — if just cause for dismissal does not exist, then a “bad” employee is entitled to the same amount of notice as a good employee, where all other relevant factors are equal.
Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or [email protected]. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.
