Terminating an employee is rarely an easy decision. Even after
the employer makes the decision, complications can arise. While the
phrase "You're Re-Hired!" isn't said very often,
as Ontario Crown corporation Hydro One discovered recently (and
probably much to its dismay), it can, and occasionally does,
In May 2015, an individual spectator at a Toronto FC game
attracted national media attention for the obscene remarks he made
on the air to a female journalist working the game. Many in social
media castigated him. He was also identified as a Hydro One
employee earning a six-figure salary. It had been a year since the
Rob Ford debacle but the issue of whether an employee could, and
should, be terminated for off-duty conduct was once again in the
As we cautioned at the time, the options
available to his employer, and the employee's ultimate fate,
largely depended on whether he was a unionized employee. The
employee was quickly and publicly dismissed from his employment
with Hydro One with a massive wave of public support. As it turns
out, he was a member of the Society of Energy Professionals, IFPTE
Local 160 and thus was subject to the terms of a collective
agreement. As a union member, his dismissal was subject to the
collective agreement. All potential remedies were under an
arbitrator's control, including reinstatement.
On November 2, 2015 it was reported, as a result of the
grievance of his dismissal, either under the order of an arbitrator
or as part of a settlement between the parties, the employee had
For employers operating in a non-unionized workplace, the remedy
of reinstatement may be surprising. This is not something which is
typically available to non-unionized employees. However, all
employers should be aware the BC Human Rights Tribunal has
jurisdiction to order reinstatement it finds that the reason an
employee was terminated, at least in part, arose from a protected
ground under the Human Rights Code. Re-instatement by the
Tribunal is rare because: (1) the employee who was discriminated
against does not want to return as an employee; or (2) the state of
the workplace is such that the Tribunal declines to exercise its
discretion to make the order. There have been no cases in recent
history where the Tribunal has made this order although it remains
Employers can learn a few lessons from the Hydro One case:
Consider implementing and enforcing a code of conduct which
clearly outlines expectations of employees while at work
and while off duty. Employers do have some limited
rights to regulate off-duty conduct.
Communicate the consequences of failing to meet code of conduct
expectations including expressly warning about termination for
Beware of and prepare for the remedy of reinstatement. There
may be appropriate occasions for an employer to take a principled
position and refuse to tolerate certain behaviour. Termination with
the prospect of re-instatement may be, in the employer's view,
the best option available in a given situation.
An employer can try to avoid litigation, a grievance (and the
potential of re-instatement) by offering severance, and perhaps,
additional consideration to persuade the employee to go away. An
employer usually can choose to terminate an employee on a without
cause basis for a non-discriminatory reason as long as it provides
notice in accordance with the collective agreement, employment
agreement or common law. Some collective agreements restrict this
right, however, which may have been the case with Hydro One. In
many circumstances, however, employers may find it repugnant to pay
Employers ought to take the long-view on these issues.
Termination with notice, or pay in lieu, may not initially be the
preferred option but in some circumstances, an employee's
return to work may pose greater challenges in the long run.
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.
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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.
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