An Employee dismissal is not as straight forward as many employers believe. It may however, appear to be straight forward in many cases for the mere fact that many laid-off employees are ignorant of their rights and do not think to challenge the circumstances or reasons for which they are being laid off. Dismissals of employees can be a complex if not handled correctly.

Dismissing an employee can be stressful and causes a great deal of anxiety for both the employer and the employee(s) being laid off. On the employer's side there is the unpleasant task of dismissing someone knowing that it is going to impact negatively on that employee and his/her family's livelihood. For the employer there is also the risk of legal sanctions should the dismissal be handled incorrectly.

For the employee, in addition to the negative impact of reduced income, there's the added stress of having to look for new employment, which is extremely difficult during periods of economic downturn.

For the employer this stress and anxiety can be reduced by ensuring that the dismissal is handled in a just manner and complies with the dismissal requirements as laid out under the federal and/or provincial laws governing employment.

How the termination of employment is carried out will vary depending on whether it is in a federally regulated industry, a unionized workplace, or non-unionized workplace. In each of these situations the procedures to be followed would be different.

Employee Dismissals Can Be Complex

Terminating an employee can become complex and at times very costly to the employer if the dismissal has violated any employment laws. Both the courts and the human rights tribunals are firm protectors of employee rights as seen in the outcomes of some recent employee dismissal cases.

When a complaint, claiming a dismissal based on discrimination, has been lodged with the human rights tribunals, their role is to determine whether the dismissal was based on any of the discriminations listed as violations under human rights legislation.

In addition to the protection given to an employee by the courts and human rights legislation as mentioned above, there are a number of factors to consider before going through with a dismissal. These factors take into consideration questions such as:

Is the termination based on 'just cause' or 'non-cause'?

If for 'just cause' then no reasonable notice or severance pay needs to be given. For non-cause terminations there is often a minimum notice period, or severance pay required.

The terms of the employment contract

Is the individual being dismissed an employee in the legal sense of the word, or an independent contractor?

Does the employee belong to a union, or is he/she non-union employee?

Does the employer falls under federal or provincial jurisdiction?

If you, as an employer, fall under federal jurisdiction then you would be governed under the Canada Labour Code which places further restrictions on the termination on an employee.

If, as an employer you fall under provincial jurisdiction then you would be regulated under the provincial employment standards of that province in which that employee is employed in.

Voluntary Resignation versus Forced Resignation

• A voluntary resignation occurs when an employee resigns out of his or her 'own free will' In this case the employee has no claim to a reasonable notice or any severance pay.
• A forced or involuntary resignation occurs when an employer puts pressure (directly or indirectly) on an employee to resign or face being fired. In the court of law this is considered a dismissal.
• If an employer changes the terms of the employment contract in order to force the employee to resign, then that would deemed a constructive dismissal.

Although an employee dismissal can be complex at times, employers can protect themselves by ensuring that their dismissals are, just, and that they comply with the legal requirements for the termination of a worker's employment contract.