Employment

There is an inherent imbalance of power between employers and employees in every employment relationship. If you have been terminated from your job it is important you know your rights and what steps to take upon your dismissal.

If an employer intends to terminate an employee, there is a common-law obligation in every non-unionized employment relationship for the employer to give “reasonable notice” of the termination. The notice is supposed to provide sufficient time for the terminated employee to find a new job.

When an employer does decide to terminate an employee, they can either notify the employee that they may continue to work, but their employment will be terminated after the notice period has expired, or terminate the employment immediately and pay the employee a sum to account for the notice period (i.e. pay in lieu of notice).

In certain circumstances, an employee is not entitled to notice of their termination or pay in lieu of notice:

• The employee resigns

• The employment relationship is frustrated

• There is just cause for termination

• The employment contract includes valid clauses specifying the amount of notice the employee is to be given upon termination

• The employment is governed by a fixed-term contract

Absent the above circumstances, the courts have provided guidance for determining what constitutes “reasonable notice.” Each case is treated according to its own particular facts, and the following key factors are to be considered:

• Character of employment
• Length of service
• Age of employee
• Availability of similar employment

Constructive dismissal occurs when an employer breaches a fundamental term of the employment contract, or demonstrates that it no longer intends to be bound by the employment contract. It usually arises where an employee’s duties or responsibilities are unilaterally changed by an employer.

If a unilateral change to an employment relationship substantially changes a fundamental term of the employment, then an employee may claim damages for constructive dismissal. The “fundamental terms” of employment include compensation, hours of work, duties and the employees right to be treated with dignity, civility and respect.

An employer can avoid or limit their liability for constructive dismissal if they provide reasonable notice of their intention to change the fundamental terms of the employment contract, and if that change is not accepted the employment relationship will be terminated. If an employer has not provided notice of the constructive dismissal, the employee may claim damages for the amount of notice they should have received.

Discrimination is the unequal treatment of a person based on a personal characteristic, that disadvantages them from opportunities available to other members of society. The Ontario Human Rights Code protects people from discrimination based on the following characteristics:

This protection extends to employees in the workplace. If an employer’s standards, rules, policies, procedures or working conditions distinguishes and disadvantages someone in one of the above protected groups, the employer may be liable for discrimination. In some cases, an employee may claim damages for discrimination under the Human Rights Code. However, an employer is not guilty of discrimination if they can show they have accommodated the employee to the point of undue hardship.

An employer’s duty to accommodate requires them to take steps to alleviate the adverse effects of a potentially discriminatory practice. First, the employer must assess how they can reasonably accommodate the employee by changing the workplace, short of suffering undue hardship to their business. Once this is done, they must offer the reasonable accommodation to the employee.

The law only requires an employer to accommodate an employee to the point of undue hardship to their business. What constitutes “undue hardship” is assessed on a case by case basis. Common factors to consider include, but are not limited to, safety, financial cost, interchangeability of work force and facilities, disruption of a collective agreement and morale of other employees.