HUMAN RIGHTS ISSUES TO CONSIDER WHEN ENDING AN EMPLOYMENT RELATIONSHIP

January 22, 2021 Sub Services

Employment Lawyers Calgary talk about HUMAN RIGHTS ISSUES TO CONSIDER WHEN ENDING AN EMPLOYMENT RELATIONSHIP

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.

Award-Winning Calgary Employment Lawyers

Contact Employment Lawyers Calgary
employment lawyers calgary on HUMAN RIGHTS ISSUES AND TERMINATION OF EMPLOYMENT

A. 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.

B. 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.

C. 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.

D. 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.

Conclusion - The experienced employment lawyers at Osuji & Smith will be able to assist you with your inquiries in this regard

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.

Do not wait to schedule an appointment with us for advice if you feel that you have been discriminated upon by your employer.

Contact Osuji & Smith Employment Lawyers for all your employment law-related inquiries at 403-283-8018 or fill out the online contact form for more details.

Calgary EMPLOYMENT Lawyers for Employees Only: We Speak Your Language

As your Calgary employment law team, we want to help you address your employment law-related inquiries.

We speak English, Igbo, Mandarin, Cantonese, Bengali, Spanish, Japanese, Korean, French, Hindu, Punjabi, and Urdu.

Do you have a case against your employer? Contact Us
osuji_and_smith_calgary_lawyers_2021_awards_charles_osuji_lawyer
…Osuji & Smith has just won the 2021 Three Best Rated for Best Rated Employment Lawyers in Calgary. This is our fifth win having won it in 2017, 2018, 2019, and 2020. We have also won the 2021 Three Best Rated for Best Rated Business Lawyers in Calgary for 2021. This is our third win having won it in 2019 and 2020. Osuji & Smith has also won the Three Best Rated for Best Rated Divorce, Civil Litigation, and Estate Planning Lawyers in Calgary. We have also won the 2021 Top Choice Award for Business Services in Calgary and the Hope Awards, Aspen, among other awards.

Do you have a case? REQUEST A CONSULTATION

Osuji & Smith Lawyers is known for its friendly team of legal professionals. We are client-focused and also driven to produce practical results for you.For years, our clients have trusted our experience and skill in solving their legal matters. Our skill is based on knowledge of the law and our ability to interpret it depending upon the facts of each case. Our dedicated team of lawyers is constantly striving to find unique resolutions for your complex issues. Our office is conveniently located in Kensington close to downtown Calgary, Alberta. For easy access, we also have free parking available for our clients.

BOOK A CONSULTATION

What People Say About US

JENNIFER L.

“Charles was fantastic to work with! He was very professional, made sure I knew my options and supportive to the end. He successfully handled my employment matter and I would hire Charles again if needed.”

KIRSTEN A.

Aniedi Davidson at Osuji & Smith made our experience of incorporating interesting, accessible and hassle free. She took the time required to help us understand the process thoroughly and was very kind and friendly. Incorporating felt like a large task to us and she made it easy! I would highly recommend her services to anyone looking to incorporate their business.

NEDU A.

Quite frankly, Osuji & Smith is the best. Charles and his team handled my Divorce process with ease. Their level of flexibility and professionalism is second to none! Would advise the general public to contact Osuji & Smith for all their legal needs.

RON H.

I would like to thank Nitin Srivastava of Osuji & Smith for his help on my recent case. He was very professional and knowledgeable and helped me to make the proper decision regarding my case. I would recommend Nitin to anyone needing advice on labour and employment law.

MICHELLE R.

My partner and I had a meeting with Charles today. He was very welcoming and so full of knowledge! Not only that but most importantly, honest. He helped us understand our situation and did so without us retaining him and charging us a ton of money! Such a different experience than any other lawyer I had dealt with in the city. He did not make us feel as if we were just a dollar sign and actually seemed to care. That is not common in lawyers. You’re awesome Charles and we would most definitely recommend you to anyone!

JOSEPHINE O.

Dr. Charles Osuji (Hon. D.) has been my legal advisor for some time now. From the first day I met with him, I came to the conclusion that being brilliant and respectful has nothing to do with race or colour of skin. If you need a smart, efficient, competent, hardworking and professional lawyer, Dr. Charles Osuji (Hon. D.) embodies all these qualities. Charles is a very patient, considerate, hardworking lawyer that works 24/7 for the best interest of his client. He has been handling all my legal matters and has done an amazing job. I should note that he works with a dynamic and friendly team. I highly recommend him and his law firm, Osuji & Smith!

FOERSTER D.

I had a great experience with Dr. Charles Osuji (Hon. D.) and his staff! Very professional and friendly and helpful. They are very reasonable with their hourly rates. I highly recommend Dr. Charles Osuji (Hon. D.) and Osuji & Smith to all my friends and anyone out there who is looking for professional help.

CARMELO M.

Had a great experience dealing with Charles. He looked after our best interests and finished our contract in good time. We will be using Osuji and Smith in the future.

CHRIS W.

Osuji and Smith handles all of our personal and business needs and we could not be happier with them. They are always available to answer any questions and provide sound advice. If you are looking for a great law firm, call them and they will take care of you every step of the way.

ROMINA B.

They are Excellent and I had a wonderful experience especially Mr. Charles! He is very friendly and explained us all the outcomes. And we won the case!

GLORIA N.

Charles and Colleen provided me with some legal and real estate services. They are very professional, competent and on time. Their fees are very reasonable too. I highly recommend Dr. Charles Osuji (Hon. D.) and to anyone looking for a competent and knowledgeable lawyer that can resolve your case quickly at a reasonable price. Thanks, Osuji and Smith for the excellent work!

BORIS N.

We hired Charles to help us with Employment law. He was very knowledgeable on the matter, he worked very efficiently and he achieved a favorable result in a short period of time. He was also very reasonable priced. I highly recommend him to anyone in a need of legal advice and services.

OLA F.

I came to Osuji & Smith to review a commercial lease for my new business location. Charles and Alessia thoroughly reviewed my lease with me so that I understood it, and provided me specific notes about the present lease to take back to the landlord. Charles exceeded my expectations by also giving me additional tips on legal contracts on top of sharing some business advice that will be invaluable to the future of my business and my success as a new business owner. I feel the value I received from this office is why I will surely choose them again in the future.

JAMES G.

I worked solely with Charles on an employment case that was very personal to me. From the get go he displayed nothing but the highest standard of respect, knowledge, case fact competency and actually cares about your interest & well being. Always reachable even whilst I was overseas in multiple countries. His consistency, experience, historic reference, and flawless case punctuality are very noticeable in the way he handled every single matter. I can’t thank him enough for his honest work, support, and dealings. Osuji and Smith law-firm is an amazing establishment. Thank you again, Charles.

JOSEPHINE O.

Dr. Charles Osuji (Hon. D.) has been my legal advisor for some time. From the first day I met with Charles I came to conclusion that being brilliant and respectful has nothing to do with race or colour of skin. If you need a smart, efficient, competent, hardworking and professional lawyer, Charles embodies all these qualities. Charles is very patient, considerate, hardworking lawyer that works 24/7 for the best interest of his client. He has been handling all my legal matters and had done an amazing job. He works with a dynamic and friendly team. I highly recommend him and his law firm Osuji & Smith Lawyers.

FRANKLIN O.

I have used them once and all I can say is their services are top notch, didn’t have anything to complain about. Hence I will definitely recommend them to friends and family.

SEBA P.

I had the opportunity to have Dr. Charles Osuji (Hon. D.) providing legal services for myself and I can say that he and his team dealt with my matter in a very professional way. They are very responsive and Charles worked even on a Sunday to have my issue solved as soon as possible. Reasonable priced and more than that, he offered me the most cost-efficient alternatives for my case. Highly recommend this law firm.

SARATHY

I hired Charles for a prenuptial agreement. He is amazing from day 1. Unlike other corporate family lawyers, Charles calls you back even after 9 pm and even on a Saturday or Sunday. You can directly talk to Charles anytime unlike other lawyers who are not so easy to talk. His prices are reasonable and he is very professional. I would highly recommend Osuji & Smith for your legal needs.

TERRY T.

I worked with Charles and Colleen for the sale of my old home and the purchase of my new home. They were so wonderful to deal with. Very professional and helpful. I would highly recommend Osuji & Smith for your legal needs!

ANGIE N.

Charles is amazing. He handled my divorce efficiently and professional and put up with some craziness on my part. Would definitely recommend!

Prev
Next