legal words
Handling Risky Terminations
CONSIDERING PREGNANT, DISABLED AND OLDER EMPLOYEES
By Megan Burkett
g-stockstudio/Shutterstock.com
Most companies would prefer to
avoid terminating pregnant,
disabled or older employees
due to the risk involved.
However, a company may be considering
these terminations for reasons such
as company restructuring, performance
concerns or an employee failing to satisfy
obligations under the accommodation
process.
There are a number of initial steps a
company should take to fully understand
the risks of such terminations. This includes
considering legal requirements, the
financial exposure of the terminations and
steps to take to avoid or minimize the risk.
REVIEW LEGAL REQUIREMENTS
The legal requirements for these terminations
can include obligations under human
rights, employment standards, workplace
compensation legislation and/or increased
exposure under the common law.
Terminating a disabled or older employee
can result in discrimination under
human rights legislation. There is a duty to
accommodate an employee with a mental
or physical disability, which can include
providing the employee with a leave of
absence and modifying the job when the
employee is able to return to work. For
older employees, mandatory retirement
has essentially been eliminated across
Canada with some limited exceptions. As
a result, an employee cannot be forced to
retire at age 65 and it is a violation of human
rights legislation to discriminate on
the basis of age.
In Ontario, there are essentially protected
periods for leaves of absence, such
as a pregnancy and parental leave, under
the Employment Standards Act, 2000 (the
“ESA”). There is a potential reprisal if an
employee is terminated prior to, during
or shortly after the leave. A company also
has an obligation to reinstate the employee
to their most recently-held position upon
their return to work. If the position no
longer exists, then the employee should be
reinstated to a comparable position.
The Workplace Safety and Insurance Act,
1997, in Ontario has similar types of requirements,
including re-employment
obligations and, where a termination
occurs within six months from the date
the employee was re-employed, a presumption
that the employer has not met
those obligations.
Terminating during the time periods
referenced above carry an increased risk. If
a termination is being considered, waiting
until the employee is outside of these protected
periods is the safer option.
DAMAGES
For common law termination entitlements,
age is one of the main factors in
assessing reasonable notice. As a result,
termination packages for older workers
are often larger. It can be more difficult for
older workers to mitigate their damages
and find employment.
For a short-service employee, the
amount of compensation and damages
that can be awarded under human rights
legislation or for a reprisal under the
ESA can be significantly more than the
employee would receive compared to the
common law.
Courts have the ability to award damages
for a breach of human rights in addition
HRPATODAY.CA ❚ MAY/JUNE 2016 ❚ 15