"Your Fired" Easy for Donald Trump

Reality is a bit more complicated.

If you are a business owner and you have employees eventually you will have to fire someone. It however is paramount that you undertake this process carefully to avoid a wrongful dismissal lawsuit, and you may be surprised at what an employee can get away with an still successfully sue you or have the provincial labour board rule against you and fine you. Please Read on.

A recent article in the online newsletter from the Human Resources Institute of Alberta outlined a case involving a City of Toronto employee who was caught sleeping on the job, was fired and successfully sued for wrongful dismissal.

The important parameters to remember when dealing with dismissals are:

How long has the employee been with your firm, the longer, the more difficult and more hoops you will have to jump through to justify your actions. Documented progressive discipline and a written progressive discipline policy are your only real defence.

What is the nature of the issue. Lots or employers dismiss for “Insubordination” however this again will depend on the length of time the employee has been with you and the nature of the insubordination, openly and verbally challenging a decision of yours as owner or manager is a lot different than a physical assault by the employee.

It is also very important that your employees know their status with your firm, many of us have contractors that we treat as employees, but if the relationship is not clearly spelled out to the contractor and they think that they are an employee, they may very well be able to go successfully through your provincial employment standards office with a successful complaint and it is going to cost you the business owner lots of money both in legal defence and penalties and fines, that will end up in the pocket of your dismissed contractor.

It is also interesting that the general economic climate will press on the decision of the employment standards board, often when things are more difficult and the unemployment rate is higher, the boards will say that more should have been done to rectify the problem before firing, again documentation of the problem is paramount to your defence

Accommodation is a new factor being introduced as a defence by employees. In short are there factors in the employees life that need to be considered in terms of the employer/employee relationship, and what has the employer done to accommodate the employees needs. Simply scheduling an employee for a shift that is convenient for the employer, without proper advance notice to the employee, and then firing when they do not show up can present a real problem to employers. This issue is becoming more prominent in both child care and elder care issues with employees and also with substance abuse issues.

Older employees are far more likely to pursue wrongful dismissals than younger employees. Once a staff member has been with you for over three months, unless they are caught stealing cash or physical property from you or there is a physical assault, almost all bets are off as to the success of a complaint should the employee launch one.

In short, if you have to fire somebody, and they didn’t steal from you or assault you, and they have worked for you for more than three months, tread carefully. Make sure that your line managers also know how to do this properly or you will be the one paying the price. A three strikes policy backed up with documentation is your best minimum protection.


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