Illegal Terminations of Employment
In Ontario an employer may terminate the employment an employee at any time and for any lawful reason as long as the employee is provided with reasonable notice of dismissal. There are several employment related statutes that set out the circumstances when it will be illegal for an employer to dismiss an employee. Examples of unlawful terminations include the following:
- if the employer’s decision to dismiss an employee is discriminatory it will be in breach of the Human Rights Code.1 Discriminatory dismissals include situations where the reason for dismissal was based, at least in part, because of the employee’s age, gender, disability, religion, ethnicity, sexual orientation or any if the other enumerated grounds set out in the Code. If a termination of employment is found to have been in breach of the Code, the Ontario Human Rights Tribunal has the authority to order the reinstatement of the employee as well as the payment of damages;
- an employer’s decision to terminate the employee’s employment is an act of retaliation for the employee attempting to enforce his or her rights under the Employment Standards Act2 or Occupational Health and Safety Act.3
- the dismissal was triggered by the employee’s attempts to unionize the workplace. Employees attempting to organize their workplace are protected by the Ontario Labour Relations Act.4
An employee who dismissal is unlawful continues to have the option of seeking damages for wrongful dismissal by way of a civil action. However, the employee will also have the option of seeking a remedy by filing a complaint or application with the Ministry of Labour or the Human Rights Tribunal of Ontario.
There are pros and cons with filing a complaint with the Ministry of Labour or the Human Rights Tribunal of Ontario (“Tribunal”) verses starting a civil action for wrongful dismissal. For example, in certain fact scenarios, the Tribunal will offer a faster and more cost-efficient process than a civil action. However, unlike a court, the Tribunal does not have the authority to award the dismissed employee his or her legal costs. As always, legal advice should be sought prior to making the decision.