A colleague, and good friend, asked me a very interesting question this week: Is it okay to fire an employee by email?
Or, in other words, does the manner or method of business communication have legal implications?
Human rights law is all about protecting and preserving:
- feelings
- dignity
- self-worth
So, of course, the manner or method of communicating in the workplace may be a human rights issue; especially when it’s the employer doing the communicating!
Right off the top of my head, I told my friend, insensitivity is not a quality that employers want to cultivate. Courts and tribunals generally recognize that the employer power than do workers and using this power to the employer’s advantage is a failure of the employer’s obligation to be fair.
Furthermore, human rights legislation often gives tribunals the authority to award compensation for damage to feelings, dignity and self-worth. Ontario and British Columbia allow this compensation as do other Canadian jurisdictions.
A British Columbia employer who terminated an employee by sending her six emails (with the termination letter attached) was ordered to pay an extra $12,500 by the BC Human Rights Tribunal. The employer said he wanted to be sure the employee received the letter but the tribunal said the six emails clearly indicated the employer’s total lack of sensitivity to the feelings and dignity of the worker. (Bertrend v. Golder Associates, 2009 BCHRT 274 (CanLII)
The worker in this case had been suffering from symptoms of depression and the employer was aware of her problems. In the eyes of the tribunal the employer was obligated to make a greater effort to communicate with the worker in a manner that was more respectful of her dignity than simply sending an email.
Employers should treat all employees with respect and especially employees with special needs.
The common law that governs the employment relationship also requires you to be respectful of an employee’s dignity during the termination process. This is especially true if the employee has had personal problems or has shown signs of illness or disability. My next blog, in two weeks, will deal with this topic in more detail.
Learn—don’t Litigate: double check that your processes take into account the dignity of your employees—including the dignity of former employees!
So: Is it okay to fire an employee by email?
There is precedent setting case law to suggest it is NOT okay.
Ask yourself these questions and go with your gut instinct.
- Is using email the ONLY option you have available?
- Is the employee vulnerable?
- Is the employee likely to pursue legal action?
Andrew Lawson
Learn—don’t Litigate
- Responding to a human rights complaint - September 5, 2012
- Ontario policy on competing human rights - August 8, 2012
- What does the case of Trayvon Martin tell us about racism in Canada? - April 4, 2012
