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The Question

My company was planning to terminate an employee in July. She has not been performing well for a few years and we are able to move her role to another office. She is over 60 with a 14-year tenure. We knew it would be an expensive, but necessary, termination. We would pay her more than statutory and ask her to sign a waiver.

However, she has since contracted COVID-19 and is having a hard time recovering. She may need accommodation. Can we go ahead with her termination or does her long recovery change how we handle this?

The First Answer

Pamela Connolly, associate lawyer, Ukrainetz Workplace Law Group, Vernon, B.C.

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Dismissing employees who have disabilities or other characteristics covered by human rights legislation can create legal issues. So can terminating employees during or after a statutorily protected leave, such as COVID-19 leave. It does not mean employers can’t terminate, but it requires a conscientious and cautious approach.

Employees who believe their dismissal was related to a protected characteristic may make a complaint to their provincial human rights tribunal. This is in addition to other forums (civil court claim, provincial employment standards complaint) available to employees who believe they were wrongfully dismissed. Wrongful terminations can attract significant damages and even reinstatement. Most employers would prefer to avoid such litigation.

It sounds like your reasons for wanting to dismiss this employee are unrelated to her leave, age or health status. As such, there does not appear to be a reprisal or discriminatory aspect to your decision. If, however, a decision-maker determines that just a whiff of the reason for dismissal was based on reprisal or discriminatory factors, that is enough for the employee to be successful. Consequently, it would be ideal to have strong evidence that your decision to terminate was made prior to the employee’s health event. This includes e-mails, meeting notes, letters, performance evaluations, etc.

To help ensure that the employee does not make a claim, I agree with offering an attractive severance package that exceeds statutory (and contractual, if applicable) amounts, in exchange for a release. Consider the risks when deciding how much to offer. This is an older, long-service employee with a potentially significant entitlement to common law reasonable notice. She may be incentivized to litigate if she is dissatisfied with the offer. Keep in mind that treating employees with respect and dignity during the termination process is free and can make a big difference.

Ultimately, despite your efforts, is it possible you may still end up with a claim. If that happens, I recommend that you consult with a good employment lawyer.

The Second Answer

Samia Hussein, lawyer, Sherrard Kuzz LLP, Toronto

Generally speaking, an employer may terminate employment for performance reasons. In that case, and assuming the performance does not amount to cause to terminate, the employer must provide notice of termination, or pay in lieu, and ensure its decision to terminate does not run afoul of human rights or employment standards legislation.

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From a human rights perspective, being ill with COVID-19 will likely be considered a disability. As such, if the disability was a factor in the decision to terminate, this employee may be able to successfully claim discrimination. From an employment standards perspective, if the employee is on a job-protected leave for a reason related to COVID-19, the employer will have to demonstrate the decision to terminate was unrelated to the leave.

To demonstrate that COVID-19 was not a factor in the decision to terminate, the employer should consider the following:

  • Is there a documentary record of the employee’s poor performance that predates the COVID-19 diagnosis?
  • Was the employee put on notice that there were concerns with her performance?
  • Is there evidence that the decision to terminate was made prior to the employee contracting COVID-19?

If the employer is able to demonstrate COVID-19 was not a factor in the decision to terminate, this will reduce the risk of a successful claim from a human rights and employment standards perspective. However, absent cause to terminate, this will not relieve the employer of the obligation to provide notice of termination, or pay in lieu.

Have a question for our experts? Send an e-mail to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.

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