Using COVID -19 as an excuse to fire workers may be illegal.
Since the lockdown, millions of Canadian employees have been actually or constructively dismissed as result of their employers being shut down or their businesses crippled.
Surprising to many, employers’ legitimate business reasons is not a defence to a wrongful/ constructive dismissal claim. But many employers have used the pandemic as an excuse to discard employees they long wished to be rid of. COVID-19 is merely a pretext but one which has motivated employees, in the spirit of assisting their employer and preserving their jobs, to accept layoffs or pay reductions they would not agree to otherwise.
If you are a tenant, it would be inconceivable to start paying a lower rent with impunity. You would expect to be sued. But employers are paying lower wages or laying employees off entirely and employees are, by and large, accepting it despite their actual legal rights to claim constructive dismissal in most cases.
The choice of employees selected for termination, layoffs or pay reduction is of no consequence — unless the decision is a breach of the Ontario Health and Safety Act ( OHSA), or the Ontario Human Rights Code.
Both legislations provide a powerful legal remedy — reinstatement with back pay. They therefore turn the passage of time — usually an advantage for employers in dismissal litigation, into an overwhelming disadvantage. The longer an employer waits to resolve the claim, the more back pay accrues.
Targeting older workers for dismissal could be seen as a violation of the human rights code. The company may look to eliminate older workers as they are slower to adapt to new technologies or are more vulnerable to the virus, but it’s not considered good enough by the courts.
So is dismissing employees because they are pregnant or for any other reason covered by human rights legislation. Similarly, the Ontario OHSA, and its equivalent legislation in other provinces, protects employees against reprisal of any type ( layoff, reprimand, discharge, etc.) for complaining that the workplace is unsafe or for filing a complaint to the Ministry of Labour.
Many who have been terminated or constructively dismissed as retaliation for reporting health and safety concerns can relate to David Knapp. He was a cabinet maker employed by Greenbank Custom Woodworking Ltd. in Port Perry, Ont., until shortly after he raised health and safety concerns. Greenbank alleged that his dismissal was for lack of work.
The Ontario Labour Relations Board was not convinced. Knapp did not seek reinstatement but was awarded compensation for his lost wages of $ 25,200, another $ 4,200 for loss of employment and, $ 2,500 in aggravated damages.
For older or disabled employees ostensibly terminated for “COVID-19 related business reasons,” it’s believed the real reason is rooted in human rights. The case of Sharon Fair against Hamilton’s Wentworth District School Board is instructive.
Fair had been an employee of the school board since 1988. In the fall of 2001, she developed an anxiety disorder. According to her treating psychiatrist, Fair could not perform duties where she would be responsible for the health and safety of others, nor tasks where there is a risk of personal legal liability.
Otherwise, she was perfectly capable of gainful employment. She was ready to return from her disability and a job was advertised on June 26, 2003, which she was suitable for, but was not selected. On July 8, 2004, the Hamilton-wentworth School Board terminated her employment.
Human rights cases wend their way slowly. In 2013, almost a decade after her termination, the Ontario Human Rights Tribunal ordered that Fair be reinstated with back pay of $419,283.89 from that date a decade earlier when she could have been selected for the job. Another $ 30,000 was awarded as compensation for the injury to her dignity, feelings and self-respect.
Wrongful dismissal judgments, where most awards range between two and twenty- four months, pale in comparison with what OHSA and human rights claims can result in.
Today, many “potential Fairs and Knapps” are being dismissed, laid off or are facing significant salary reductions. Their actual and constructive terminations are being conducted under the guise of a “COVID-19 related business decisions”.
Even if the illegal reason is only part of the company’s deliberations, and COVID- related economic reasons play another part, the decisions are still illegal and such employees are entitled to substantial compensation, in addition to reinstatement or wrongful dismissal damages.
Moreover, employees have time on their side. The longer it takes to get to a human rights hearing, the greater the recovery for an employee since the presumptive remedy is full back pay from the time of dismissal.
Their length of service or other factors which may dictate the result in a wrongful dismissal case is usually entirely irrelevant in such cases.
So, while the delay gives employers an advantage in a wrongful dismissal case, they are at a disadvantage in a human rights case.
Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.