“Can my employer…” those three little words are the most common start to any question asked of an employment lawyer by a worker. “Can we” is the most common start to questions asked of an employment lawyer by management. The purpose of this post is to address the issue of what employers can do and what am employee’s rights and response can be.
Explaining the Issue
To explain the issue, here are some of the most common questions that lead people to this employment-law blog:
- Can my employer fire me while on maternity leave / if I am pregnant?
- Can my employer fire me without a good reason?
- Can my employer fire me without giving me a warning?
The answers to those questions can be found below.
The Answer to the Question “Can”
Without being pedantic, the answer to the question “can my employer” is almost always “yes.” If you recall elementary school when you may have asked the teacher, “Can I go to the bathroom?” the ‘smart’ reply was “I don’t know, can you?” In that case, what the teacher was getting at is that there is a difference between what one is able to do, i.e., what one “can” do, and what one is permitted to do, i.e. what one “may” do. Sparing you the further grammar lesson, what this simple example illustrates is that there is a difference between what employers are able to do and what they are permitted to do.
Consider for a moment the recently decided case from the Supreme Court of Canada concerning Wal-Mart and its closure of a store shortly following the staff’s unionization: United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., 2014 SCC 45 (CanLII). In that case, the Supreme Court of Canada said that Wal-Mart could not legally close its doors prior to reaching a collective agreement with the union. Put another way, the Supreme Court of Canada said that Wal-Mart was not allowed to close the store. But here’s the thing: Wal-Mart did. Wal-Mart may not have been allowed to close its doors at its store in Jonquière, Quebec… but it did.
Getting to the Point
The point of this post is that what the law does in employment law cases is provide employees with remedies after a breach of the law. In the Wal-Mart case, the Supreme Court of Canada referred the case back to a labour arbitrator to determine the appropriate remedy.
Remedies for breaches of the law will vary. The remedies will vary both with respect to the type of breach itself and where the aggrieved party chooses to litigate his or her case. Below are a few examples of what other employees have done in the past.
The Case: Wellman v. The Herjavec Group Inc., 2014 ONSC 2039 (CanLII),
What Happened: The plaintiff employee, who was described by the judge as having “worked diligently” for the employer and who was never reprimanded, punished, nor advised of any concerns with respect to his work was nonetheless terminated from employment.
Where the Case was Pleaded: Ontario Superior Court of Justice
Remedy for Employee: Money damages equal to four months’ pay.
Summary of the case on this blog: ONSC Awards Four Months Notice to Employee with Less Than One Year of Service
The Case: Harris v. Yorkville Sound Ltd., 2005 CanLII 46394 (ON SC)
What Happened: The plaintiff employee, was a 29 years-old, pregnant, mother of two, who had worked for the defendant employer for a period of approximately eight years when she was fired. Her employer may not have known she was pregnant at the time of dismissal.
Where the Case was Pleaded: Ontario Superior Court of Justice
Remedy for Employee: Money damages equal to twelve months’ pay.
Summary of the case on this blog: Pregnant Employees are Entitled to Greater Notice of Dismissal
The Case: Ontario Inc., o/a Weston Property Management v. Torrejon, 2012 ONSC 1978 (CanLII)
What Happened: An employee received a diagnosis of breast cancer. Her employer fired her as a result.
Where the Case was Pleaded: Human Rights Tribunal of Ontario
Remedy for Employee: $20,000 in general damages for injury to dignity, feelings and self respect and $2,640 in special damages for loss of employment income.
Summary of the case on this blog: Ontario Human Rights Damages to Dismissed Breast Cancer Employee Affirmed
The Case: Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440
What Happened: An employee was not reinstated to her former position on the basis of a perceived disability.
Where the Case was Pleaded: Human Rights Tribunal of Ontario
Remedy for Employee: Reinstatement to employment, together with nine years of lost wages
Summary of the case on this blog: Ontario Employment Law’s Top Five Cases – 2013 Edition
The Case: Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799
What Happened: An employee was fired after providing her employer with a doctor’s note.
Where the Case was Pleaded: Ontario Superior Court of Justice
Remedy for Employee:Wrongful dismissal damages equal to three months’ salary, plus $20,000 in money damages for injury to dignity, feelings and self respect
Summary of the case on this blog: Ontario Superior Court Awards Human Rights Damages
Takeaways for those with Labour Pains
As the cases above demonstrate, especially those on the issue of whether an employer may fire someone who gets sick, picking the appropriate arena in which to pleads one case is important. Sometimes the ‘court’ will order a person to be reinstated to his or her former position and will order the employer to pay the employee lost wages. However, note that these cases take time; sometimes several years to resolve. The Fair case, for example, took nine years to get a decision from the Human Rights Tribunal, and the appeals of that case are not yet done. It could easily take twelve or more years for that case to be completed!
Also, as all the cases above demonstrate, the law was not able to prevent the wrongdoing from occurring, only assist the employee once the wrongdoing had occurred.
If you are an employee and you believe that your rights have been violated, the first question an employment lawyer should ask you is: “What do you want?” As the cases above demonstrate, employees have options including pursuing their job back in certain cases or money damages. Note that an employee cannot always ask for his or her job back; only in certain types of cases is that possible.
An employment lawyer may not be able to prevent your employer from doing something wrong – although with enough time, a strongly worded letter may be able to prevent the harm. What we can do, however, is assist you in pursuing the appropriate remedy.
If you are a worker in Ontario and you believe that you have a case against your employer, and if you are willing to pursue your legal remedies and invest the cost of a case (we will ask you for a money retainer in most cases) it may be prudent to speak with an employment lawyer. The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
If you are an employer in Ontario and are considering letting one of your employees go, the takeaway from the above is that you almost certainly can. What you should be aware of, however, is that such actions may come at a price. (Although not necessarily, on this point consider our post Not All Employees Are Entitled to Severance.)
If you are an employer in Ontario are looking for legal advice with respect to terminating the employment of one or more of your employees, The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.
--As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean Bawden, publisher of Labour Pains, can be reached by email at sbawden@kellysantini.com or by phone at 613.238.6321.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.
No comments:
Post a Comment