In every employment relationship, an employer has the duty to protect and accommodate the right to equal treatment of persons. This extends across the entire process, job application, recruitment, training, transfers, promotions, dismissals, layoffs and terminations. A failure to safeguard against any discrimination or harassment might attract human rights claims. By law, the respect of human right must be complied with and applied in every workplace setting.
In this post, we focus on some common human right issues that can arise at the ending phase of an employment relationship. There are instances when it will be appropriate for an employment relationship to end, whether termination, layoffs, early retirement or an employee’s resignation. In any of these situations, an employer must ensure fair treatment and avoid any discriminatory practices. It is in an employer’s interest to know whether discrimination, harassment or even a failure to accommodate were factors in an employee leaving. This key consideration applies to any employment relationship, irrespective of an employee being probationary or otherwise.
- When an Employee resigns.
The fact that an employee has resigned does not protect an employer from liability to any discrimination that a person may have experienced in the workplace. A court or tribunal may find that employees who quit because of a hostile work environment, have been constructively dismissed. This may also give rise to a human right violation under the Alberta Human Rights Act (AHR Act). If a person resigns because of discriminatory practices, the employer needs to take steps to address and prevent such practices. Where mental illness or other disability are contributory factors to the employee’s resignation, the employer should take steps to look at their obligation to accommodate, if required, and comply with it before accepting such a resignation. It is necessary to consider whether the employee understands the implications of the decision, has time to reflect, and can rescind the resignation within a reasonable period.
- Termination by the Employer
Common issues arise in a discriminatory termination from employment. The law demands that an employee is treated with dignity, respect and access to necessary supports when terminated from an employment relationship. If a person, categorized under any discriminatory ground like ableism, gender, sexual orientation, pregnancy or any other identified discriminatory ground is terminated from a position, and that position is filled by another employee who is not identified by the same grounds, an inference of discrimination is raised. Even though an employer claims a neutral excuse for termination, but the evidence shows that no such reason occurred, the inference even becomes stronger.
Similarly, other claims of human rights infringement may arise from situations where a termination is unevenly used as a disciplinary measure towards employees of certain identified discriminatory grounds like race, age, gender, etc. Here, an employee may feel he or she has been treated fairly in their employment until the actual incident of his or her termination. An example would be when an employer only fires a racialized employee, who has a clean disciplinary record like his non-racialized colleague, even though both worked on the same shift and shared the same level of responsibility.
In other cases, threats of discriminatory termination can be seen from the manner of termination itself. Whether a termination was done for cause or otherwise, or initiated at a probationary period or upon full confirmation of employment, it must be done in a manner consistent with the Employment Standards Code. Therefore, irrespective of employment status with the organization, employers must be mindful of how a termination is done to avoid unjust treatment of a terminated employee. Refusal to complete termination documents or withholding statutory entitlements, such as termination pay, would give rise to human rights claim, outside any other damages an employee may be entitled to.
- Company Restructuring and Layoffs
The need to downsize operations may require strategic actions by an employer organization to meet business plans. Often, employee services are targeted to pay the price, resulting in the loss of employment. However, in doing so, employers must ensure adequate compliance with the law against discriminatory termination. Specific individuals should not be singled out when deciding which employee should be retained or otherwise. For example, it would be a case of discrimination to dismiss only women who had recently returned from maternity leave or to abruptly terminate any employee on a medical leave from employment, in other to save cost.
When informal systems are used to rank employee layoff, the people rather than positions, become chosen for elimination. As a result, various persons will become disadvantaged and may warrant discriminatory claims against the employer. A better layoff process is one based on the needs of the company, which are clearly defined before application. If qualifications are considered in the layoff decisions, they should be objectively evaluated. Human right claims about lay-off decisions may arise when an objective evaluation shows that certain employees, identified by age, gender, race, ableism etc. are laid off while others with fewer qualifications are retained. This would suggest an inference that an employer undervalues the strengths and contributions of racialized employees or people identified by other discriminatory grounds.
- Voluntary Retirement of Employee.
The use of early retirement packages as an incentive to encourage voluntary exit from an employer would not ordinarily raise human rights concerns; however, the fact that a generous retirement package is offered would also not defeat a claim of age discrimination if the early retirement option was not truly voluntary (i.e. when there is direct pressure being applied to accept retirement). A good approach will be a non-coercive demand for voluntary retirement for all employees irrespective of their age or years spent in the company. On the other hand, an employee cannot claim age discrimination if no access to the voluntary exit program is offered because the employer still requires his or her services.
When making offers of early retirement, or making changes to employment related benefits, such as retirement, health care benefits and pension benefits, employers should ensure that employees are not denied equal treatment, and are fully advised of their rights and entitlements. Also, employer buyout packages to employees, should take care to consider that employees with disabilities, including persons on leave, are not left out and well accommodated. An employer’s failure to accommodate employees, for example, by policies that decide eligibility for a buyout package based on hours worked in the past year have been found to be discriminatory.
It is important to remember that like other phases of the employment process, human right issues can arise at the end of an employment relationship without an expectation. The law exists to encourage proactive steps are taken to accommodate diversity and avoid possible human rights complaints at any phase of an employment. However, even without the ‘law’, a work environment that respects the dignity of all employees is in an organization’s best interest. Employee absences and turnover, damaged professional and organizational reputations, and costly hours of litigation before tribunals may very well be avoided by employers’ quick reaction and functional measures to address human rights allegations. Our growing multicultural society also places the expectation on employers to promote a healthy work environment.
Please contact Osuji & Smith for advice if you feel that you have been discriminated upon by your employer.
Written by Calista Nwaiwu.