Handling an Employee Dismissal

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 become very complex if not handled correctly from the start.

Employee Dismissal - Impact

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

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.

Note: Be mindful of just accepting your employer's reasons for dismissing you. If the reason given is "for just cause" your chances of obtaining new employment becomes extremely difficult as "just causes" implies that you are now an "employment risk" and therefore not the most suitable person to be hired.

Just Cause for Dismissal

The following offences can constitute "Just Cause for Dismissal": incompetence; insubordination and/or insolence; absenteeism and lateness; illness such as short and long-term disability; intoxication and addiction; dishonesty; sexual harassment; certain criminal, immoral or improper conduct; certain conduct which is incompatible with continued employment; frustration with the employment contract; conflict of interest; starting legal proceeding against your employer; breach of fiduciary duty; criminal or regulatory charges against you are not in itself Just Cause; and seeking new employment is not in itself a Just Cause for Dismissal.

Both employers and recruiters tend to shy away from hiring someone with any of the above on their work record. Reference checks are designed to search for the above misconducts. Having any of these on your employment record can have a serious impact on your chances of good employment in the future (for years to come).

If you do not agree with the employer's reason for you dismissal, you can challenge that decision.

For the Employer

For the employer the 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.

Note: Court decisions regarding a wrongful dismissal generally are inclined to favour the employee. The courts seek to protect the vulnerability of the employee. Damages can prove very costly in terms of money and reputation.

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.

If a complaint is lodged with the human rights tribunal claiming an employee dismissal is based on discrimination, 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.

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.

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