Not in a union? Employer might not have to give reason for termination

“They did not even give me a reason for my termination!”

This is the most common complaint I hear from the recently dismissed.

The fact is that if you are not in a union, the employer does not need to give a reason of any kind for your termination.

If it is not alleging you did something so heinous that you are disentitled to a severance package, it can terminate you because it doesn’t like the colour of your shoes. That has been the law for a couple of hundred years and it’s not likely to change soon.

The statement that employers don’t need a reason doesn’t mean they can terminate for any reason they choose without limits. Here are some of the exceptions:

1. Making a decision to terminate somebody’s employment that is connected in any way to a maternity or parental leave will land the employer with a complaint to the Ministry of Labour or the Ontario Human Rights Tribunal. If it can be established on a balance of probabilities that Janet was chosen to be one of the five people terminated on a particular Monday as a result of cutbacks, even in part because she had been on maternity leave for nine months, the employer would be subject to damages and payments far exceeding simple termination entitlements.

A manager forced to make staff reductions will often ask herself who will be missed the least. It is too easy to put someone whose absence has already been accommodated for nine months on that list. If an adjudicator believes that Janet’s name would not be on the list if not for her maternity leave, it’s over.

2. Employers must steer clear of any considerations relating to a prohibited ground of discrimination under the Ontario Human Rights Code. That list is long but includes age, colour, creed, gender, sexual orientation and disability. If our manager from Janet’s example puts Bill on the list because he is 63 and a half years old when the cutbacks come, thinking that he would have retired soon anyway, all kinds of trouble will ensue. If the employer can establish that Bill would have been on the list regardless of his age because of the position he held, that’s fine. Bill will get an appropriate severance package but there will not be a successful human rights complaint. But if his job functions continue substantially within the organization and a younger employee is assigned, there could be trouble.

Please note that I did not refer to Bill’s job title. Too many employers think that if they change the title and mix it up a bit they’ll be able to fool the Human Rights Tribunal. That strategy almost always fails.

Things get complicated when Bill’s younger replacement earns 30 per cent less than he did. The point, argues the employer, is not Bill’s age but his level of compensation. We had to make cutbacks and reduce costs. The person who made less just happened to be younger.

The flip side of that, of course, is that the only reason Bill made as much as he did was because he was loyal and stuck around for 28 years. People who have stuck around that long are usually older.

Unfortunately, I have seen a number of cases where general cutbacks seem to include older workers more than younger ones. Those older workers will confirm that their replacement likely makes 20 to 30 cent less than they did. It may not be fair or just, but those kinds of situations make it hard to win an age discrimination complaint.

3. Employers should never terminate anyone for any reason related to a disability or workplace injury. A violation of the Ontario Human Rights Code, and possibly the Workplace Safety and Insurance Act would be involved. Again, the seminal question is “If not for the disability, would this employee have been let go?” Complications ensue when the physical limitations of a disabled employee limit the functions they can perform and the alternative positions they could fill within the shrunken company.

4. Employees who make complaints to the Ministry of Labour or stand up for their rights pursuant to employment legislation of any kind or who threaten to make a complaint should usually be left alone. Taking a reprisal action against an employee for complaining under any statute that affects the workplace will always land an employer in hot water.

Employers should always be asking themselves: “If the employee alleges they are out of work as a result of a prohibited motivation, would I be able to persuade an arbitrator it is not true?”