Employers are often under the impression that they can fire an employee at any time, for any reason, as long as they provide reasonable notice. And in Ontario, the courts will usually not reinstate employees once they are dismissed. However, there are some major exceptions.
The Human Rights Tribunal, the Labour Relations Board, and adjudicators appointed under the Canada Labour Code all have the power to reinstate dismissed employees to their former positions.
This has huge repercussions for employers. Employees can use the prospect of reinstatement to negotiate large severance packages.
Employees may seek reinstatement in three specific circumstances.
- The employee's termination was in violation of the Human Rights Code.
If a Human Rights Tribunal finds that the decision to terminate the employee was even slightly motivated by discrimination related to disability, age, race, gender, religion, or sexual orientation, the termination will be deemed to violate human rights legislation. The employer will be liable for lost wages and general damages for injury to the employee's dignity, feelings, and self-respect. The employee many also apply for reinstatement of his/her position.
- The employee was fired in retaliation for a workplace complaint.
Employers are prohibited from firing employees for having exercised their rights under the Occupational Health and Safety Act or the Employment Standards Act. For example, employees who are terminated for insisting on their right to overtime pay may apply for reinstatement, back pay, and general damages. The employer must then prove to the Labour Relations Board that no violation or reprisal occurred. Failing to prove the company's innocence may lead to costly settlements.
- The employment relationship is federally regulated.
Federally regulated industries such as railways, banking, telecommunications and trucking, are governed by the Canada Labour Code (CLC). Non-managerial workers in these industries have a right to seek reinstatement in many circumstances. These employees may seek reinstatement with back pay from an adjudicator, or seek lost wages, which are similar to severance packages. (Please note: This does not apply to unionized employees, who would file a grievance under their collective agreement.)
Back pay, damages and reinstatement can add up to huge financial losses for your company. If you are facing repercussions for terminating an employee, it would be prudent to seek qualified legal advice.
Contact Hyde HR Law for expert advice and representation.