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Firing by email part II: wrongful dismissal implications

the-axePursuant to my blog post of January 11, 2011 discussing the implications of firing by email when an employee files a complaint under human rights legislation, Is it okay to fire an employee by email? It may depend on what course of legal action your former employee pursues. The following describes the implications of firing by email when the fired employee chooses to sue for wrongful dismissal at common law.

The Ontario Superior Court of Justice has implied that employers should extend the “courtesy” of scheduling an in-person meeting when firing an employee. Firing by email, said the court in this particular case, contributed to a finding that the employer acted in a callous and insensitive manner. (Farrell v. Workgroup Designs Ltd., 2005 CanLII 2314, ON S.C.). The email, in part, cost the employer an additional $16, 800 on top of the original award of almost $60, 000.

It is important to understand that this case was decided, in part, based on “Wallace” damages. In 1997 the Supreme Court of Canada (SCC) found that when the manner of dismissal from employment is excessively offensive, the terminated employee may be entitled to additional termination pay in lieu of notice. The court, in the above case, extended the amount of termination pay Farrell was entitled to due, in part, to being fired by email.

Were this case to go before the court today, the additional award based on “Wallace” (for firing via email) damages would be eliminated based on the SCC 2008 decision in Honda v. Keays. In this landmark decision, the SCC overhauled how damages for bad behaviour during the termination process are awarded—good news for many employers!

In the post-Keays era, a terminated employee may no longer routinely claim “Wallace” damages because of the former employer’s bad behaviour during termination and expect to win easily. Today, the employee must prove that the employer’s bad behaviour (like firing by email) was so egregious that the employee suffered considerable damages in the form of mental distress. The amount the employee might be entitled to will depend on the actual losses suffered and not on an automatic formula as was routinely calculated by the courts in the “Wallace” era.

But—a warning to employers—the decision in Keays may actually cost employers more in the future. Keays requires that a damage award be tied directly to actual losses suffered as a result of an employer’s bad behaviour during dismissal. So, if a former employee can prove that the behaviour (like firing by email) caused considerable upset to his or her well-being, the amount the employee may be entitled to may far exceed a mere extension of the notice period formerly available under the “Wallace” principles. The additional award will reflect the actual damage suffered by the employee and this may be considerably more than an additional month or two of termination pay.

Andrew Lawson
Learn Don’t Litigate

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Andrew Lawson

Trainer and advisor at Learn Don't Litigate
Andrew Lawson is a human rights and health and safety trainer and advisor, currently consulting to both the federal and Ontario governments. Since 1996, he has conducted extensive legal research in the areas of human rights and occupational health and safety law. He has worked in the people management business for over 25 years. Read more
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