When job redundancies arise in an organization, whether as
result of a merger, restructuring, or downsizing, employers need to
remain aware of duties under human rights legislation,
such as the Ontario Human Rights Code.
To meet these expectations, an employer's decision
regarding which employees will lose their jobs can not be tainted
in any way by discriminatory decision-making. For example, if
terminations are being decided on the basis of poor performance, it
could be considered discriminatory if accommodated employees are
included – where their lower performance is tied to their
limitations due to disability. To ensure fairness and avoid
discrimination, employers should aim to eliminate positions, as
opposed to individuals, and relate the decision-making process to
the goals of the business restructuring. When making termination
decisions, employers should also rely on objective criteria, such
as employee job performance (not associated with a protected
characteristic), as opposed to subjective criteria, like
"flexibility" or "willingness to adapt." For
example, the Human Rights Tribunal of Ontario (HRTO) has
found an employer discriminated on the basis of age when it
used "career potential" as a factor in assessing which
employees it would terminate for redundancy.1
Human rights issues may also arise when an employee's
position is designated redundant while the employee is on a
disability-related leave from work. While the employer may have
economic reasons for terminating the employment, eliminating a
position while an employee is on leave may give the perception that
the decision was based on discriminatory factors. If the redundant
employee brings a complaint, the employer will have to demonstrate
that no part of its decision to terminate the redundant position
was related to a ground of discrimination that is protected under
the Code. In these cases, detailed record-keeping is very
important in establishing non-discriminatory reasons for the
termination. For example, in a case last year, a complaint was
brought to the HRTO alleging that the complainant was
terminated from her employment because of her disability. The
employer in that case was able to demonstrate that it had started
restructuring six months before the onset of the employee's
illness, and successfully defended against the complaint. The HRTO
ultimately accepted that the termination was based on legitimate
business reasons and dismissed the complaint
Ultimately, employers are entitled to make the best business
decisions for their organizations, which may include downsizing or
eliminating redundant positions. However, these decisions must
occur within the parameters of any applicable human rights
legislation and be provably non-discriminatory.
Norton Rose Fulbright is a global legal practice. We provide
the world's pre-eminent corporations and financial institutions
with a full business law service. We have more than 3800 lawyers
based in over 50 cities across Europe, the United States, Canada,
Latin America, Asia, Australia, Africa, the Middle East and Central
Recognized for our industry focus, we are strong across all
the key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Norton Rose Fulbright LLP, Norton Rose Fulbright Australia,
Norton Rose Fulbright Canada LLP, Norton Rose Fulbright South
Africa (incorporated as Deneys Reitz Inc) and Fulbright &
Jaworski LLP, each of which is a separate legal entity, are members
('the Norton Rose Fulbright members') of Norton Rose
Fulbright Verein, a Swiss Verein. Norton Rose Fulbright Verein
helps coordinate the activities of the Norton Rose Fulbright
members but does not itself provide legal services to
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should be
sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).