How to avoid wrongful termination lawsuits

Worried about wrongful termination lawsuits? You should be. The landscape of Canadian employment law is as intricate as it is changeable – with the pandemic only intensifying an employer’s need to update employment policies and consider significant changes to its workforce. COVID-19 meant that employers had to consider slowing down or even stopping their operations altogether – leaving CEOs wondering what the legalities were around terminating contracts. And, specifically, how to avoid any legal action.

HRD spoke to Jonathan Borrelli, employment lawyer at Keyser Mason Ball, LLP who revealed some technicalities hiding within terminations – and why employers shouldn’t act too quickly. 

“Employers are obligated to treat employees fairly during the entire employment relationship: that includes during a termination,” he told HRD. “An employer (in Ontario) has the power to terminate an employee at any time, so long as the reason is not discriminatory. Where an employer chooses to terminate an employee like this – without cause and with notice-- the employer will owe the employee all of their contractual termination entitlements, and perhaps a lot more depending on how that contract is worded.”

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When considering terminations ‘for good reason’, Borrelli cautions employers to move carefully but decisively.  “If an employer has a good reason to terminate an employee ‘on the spot’ – or in other words, to terminate an employee without notice – I encourage employers to both (a) review their policies and (b) complete a full investigation into the reason for that termination.  So first, what do the policies dictate? I've seen some policy manuals that say that if an employee is late three times, they would be fired without notice.  The law encourages employers to treat employees fairly, even for this “capital punishment” of employment law.  That being said, if an employer can prove the employee is fully aware of an employer’s reasonable standard, that termination without notice could be upheld. Now let’s say an employer has no policy on off-duty conduct and an employee has taken part in some public event that may impact the reputation of the employer.  Even if there is no policy on off-duty conduct, and employer could complete a reasonable investigation into the employee’s actions and perhaps come to a determination that the employee’s conduct has damaged the employer’s reputation so much that the employee is deserving of a termination without notice.”

Borelli was quick to mention that it is important to continually review and update workplace policies to reflect the changing circumstances of an employer’s operation.

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“The pandemic has shown us again how important policies are.,” he posited. “Policies on vaccination are becoming increasingly popular, and in some cases mandatory.  They now join the other important policies for an employer to maintain and update, like for workplace harassment, workplace violence, unsafe work, and accommodation in the workplace. Where the policies are kept up to date and circulated to all workers, the employer can later rely on those policies to enforce standards or perhaps terminate an employee.”

“A workplace policy manual is not something that employers can leave in the corner and let collect dust” said Borrelli.  “It is like an office plant at the front door – it is a living thing that we look at all the time, water it when it’s dry (review it regularly), and repot it (or update it) each year so it is at its best.”