An employer who dismisses an employee without cause is obliged to provide reasonable notice of termination. Where no notice is provided and the employer fails to provide pay in lieu of notice for an amount equivalent to the notice period, the employee will be able to recover damages by bringing a civil action for wrongful dismissal,
The above formula makes no mention of an employee’s “right to their job back” or to “reinstatement” in the event of a wrongful dismissal. This is because at common law, there is no right to reinstatement. The Courts can award money damages for losses suffered as a result wrongful dismissal but they cannot order the employer to take the employee back.
There are however instances surrounding a termination which may entitle an employee to reinstatement. This is because both provincial and federal statute provide for such a remedy in specific circumstances.
Consider the following situations: (1) An employee, aged 65, is let go after the employer has hired a replacement even though the employee has expressed no interest in retirement; (2) An employee goes on parental leave and while away, is replaced. Upon advising the company that she is ready to return to work, the employee is told her job has been given to someone else; (3) An employee complains that he has not received the vacation pay to which he is entitled only to have the employer respond by advising him that if he doesn’t like it, he can look for work elsewhere; (4) A bank advises an employee that she is being dismissed without cause. In response to inquiries from the employee as to the reason for the dismissal, the bank indicates it was not satisfied with her performance; (5) An employee complains about safety violations in the workplace. Her campaign to have the employer adhere to safety standards results in her termination; (6) An employee is terminated after explaining that she cannot work late because she has been unable to arrange baby-sitting for her children; (7) An employer refuses to return an employee to his job after he has recovered from a work-related injury; (8) A dispute between an employer and an employee over his right to bereavement leave, after the death of a parent, leads to termination.
In each of the above cases, there are grounds for a statutory claim seeking reinstatement or re-employment. The following statutes govern the above examples:
(a) The Ontario Human Rights Code (examples 1 and 6 above) – Termination of employment on the basis of age and/or family status are among the grounds of discrimination prohibited under the Code. Where employment is governed by federal human rights legislation, the right to be employed free from discrimination is governed by the Canadian Human Rights Act. Under both provincial and federal human rights legislation, an employee may seek reinstatement where discrimination on a prohibited ground can be established.
(b) The Employment Standards Act (examples 2, 3 and 8) – An employee who goes on a leave of absence, as contemplated by the ESA, is entitled, in most cases, to return to his or her job upon the completion of the leave. Failure by the employer to return the employee to their former position or a comparable position is a violation of the ESA for which the employee can seek reinstatement. The same will apply where the employee has been terminated as a result of his or efforts to enforce rights under the ESA.
(c) Canada Labour Code (example 4) – The employment obligations of banks and
other federally-regulated employers are governed by the CLC. Where, under the CLC, an employee has been unjustly dismissed, his or her remedies include reinstatement.
(d) Occupational Heath and Safety Act (example 5) – An employee cannot be terminated for asserting his right to a safe working environment as contemplated by the OHSA. In such circumstances, an employee who has been terminated can seek reinstatement.
(e) Workplace Safety and Insurance Act (example 7) – An employer has a re-employment obligation to an employee who has recovered from a workplace injury. Unlike the previous examples, however, an employer who fails to comply with its re-employment obligation, faces only financial penalties for statutory non-compliance.
Does an employee who has been terminated have a right to reinstatement? If the circumstances of the termination fit within the statutory protections set out above, the answer may be Yes. In such circumstances, even where the employee does not want to return to the employer, he or she may have a claim for additional payments based upon the relinquishing of the right to reinstatement.
Please note that the above examples are not meant to be exhaustive, and ought not to be taken, in any way, as limiting the right to reinstatement to the above mentioned statutes or fact scenarios. As always, individuals who are faced with termination, are well advised to seek legal counsel so that they understand their rights upon termination and the remedies available to them.