Questions relating to wrongful dismissal, applicable notice periods, mitigation and damages are generally legally well-defined and understandable. For the most part, employers have long recognized that getting in front of the wave by proposing a reasonable severance package avoids costly litigation and enhances the morale and productivity of remaining employees. For some reason, once disability issues are superimposed on the framework, much of the certainty in the process escapes like air out of a slashed tire. It is arguable that the legislature ought to consider entering into this field and inserting the certainty that employers and employees crave. However, until that happens or until the law is refined sufficiently to present workable guidelines, we are left interpreting the fact-specific cases that have already been decided to seek clues as to what to do with our current problems. The entire process is very unsatisfactory from a legal practitioner’s point of view.
TERMINATION RIGHTS GENERALLY
Subject to contracts of employment that explicitly define termination rights, employers and employees are generally bound by the statutory law (in Ontario, the Employment Standards Act, 2000) and the common law. Generally speaking, any employee can be terminated at any time with or without cause. Naturally, if an employer has cause, immediate termination may be justified. Absent cause, employers generally have to give reasonable notice (which can be a combination of working and other notice) and/or provide payment in lieu of notice. The statute mandates certain minimum requirements; the common law the rest. The case law is sufficiently established that most practitioners can readily agree to a range of applicable notice in any given case and the differences between opposing counsel can usually be resolved through brief
negotiation. Often, the most difficult issue to resolve relates to whether or not the terminated employee will be able to mitigate his or her damages within the reasonable notice period or not. Various rules of thumb, conventions and assumptions now sufficiently inform all sides such that resolution of these claims is often not that difficult.
It is common ground that illness or disability is not intentional and will not justify dismissal for cause. However, an employee’s inability to work or to perform the essential duties of his or her employment can give rise to grounds of a sort.