While it's always important for employers to be professional when dismissing an employee, employers would be wise to exercise extra care if they have to let someone go during the holiday season.

Canadian courts have long cautioned employers to avoid being unduly insensitive in the way they dismiss employees. Courts don't look kindly on terminations that are, as the Ontario Court of Appeal once described, "cold and brusque."

If an employer's conduct during a dismissal is unfair or unduly insensitive and leads to an employee's mental suffering, that employer could be on the hook for paying the employee "aggravated" or "moral" damages.

Throughout the years, courts have signaled that employers should be careful about dismissing employees in and around significant events or moments (e.g., before a daughter's wedding or around the time a parent dies). As such, if not carried out with appropriate care, a dismissal during the holiday season could be seen as unduly insensitive.

Just last year, in Horner v 897469 Ontario Inc.1, the Ontario Superior Court awarded $20,000 in aggravated damages to an employee who was dismissed at Christmas time. In that case, days before the Christmas break, the employee had complained, to her employer, that a co-worker was harassing her at work. Then, on December 28th, the employee found a termination letter stuck in the back door of her house. The letter purported to dismiss the employee for cause. While the Court considered multiple factors in arriving at its decision, the decision paid particular attention to the fact that the termination letter was sent "during the Christmas holidays."

In Zesta Engineering Ltd. v Cloutier 2, the Ontario Superior Court awarded an employee $75,000 in moral damages after the employee was dismissed during the holiday season. Importantly, in this case, the employer had engaged in a long list of bad-faith behaviors. However, in deciding to award moral damages to the employee for the manner in which he was dismissed, the Court made sure to point out that, among other things, the employee was let go only "five days before Christmas."

Of course, courts will consider a number of factors when deciding whether or not to award damages to employees for the manner in which those employees have been dismissed. However, employers should be on notice that courts often consider the timing of a dismissal when assessing a claim for aggravated or moral damages. Therefore, if an employer has no choice but to dismiss an employee during the holidays, it would be in the employer's best interest to do so with the utmost care and sensitivity.

Footnotes

1 2018 ONSC 121.

2 2010 ONSC 5810.

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

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 contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

Law around the world
nortonrosefulbright.com

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.