Can Employers Fire Employees Who Do Not Returnachkarlaw-admin
In Ontario, the number of individuals receiving both doses of the COVID-19 vaccine has been continuously increasing. As such, companies that had previously switched to work from home models have been making the decision to re-open their operations at their physical workplaces. In such an instance, the employer would request its employees to also return to the workplace from working from home. As such, non-unionized employers and employers may have questions regarding whether employers can fire employees who do not return to the office.
When Can An Employer Fire an Employee?
In Ontario, non-unionized employers can dismiss the employment of employees without cause for any reason so long as it does not violate the Ontario Human Rights Code. However, a without cause dismissal will require the employer to provide notice or pay in lieu of notice for this dismissal of employment. The notice period to be provided may be set out the Employment Standards Act or based on common law reasonable notice principles if the employment agreement is unenforceable.
An employer also has the option to dismiss an employee with just cause, meaning the employer would not have to provide the employee with any notice or pay in lieu of notice. However, just cause can be very difficult to prove at law and could result in the employer becoming liable for significant damages for common law reasonable notice.
Risks in Firing Employees Who Do Not Return to the Office
If an employee is refusing to return to the workplace following a request from the employer to do so, an employer may have questions regarding how they can address this situation. It may be tempting for an employer to seek to dismiss the employment of the employee in question, but there are additional factors the employer must consider.
It is possible the employee’s reasoning for not returning to the workplace is related to a required accommodation under the Ontario Human Rights Code. If the employer dismisses the employee while the employee requires such an accommodation, the employer could end up on the hook for general damages for discrimination at the Human Rights Tribunal of Ontario. It is important for an employer to determine why an employee does not want to return to the workplace.
An employer should also consider whether the employee could be entitled to common law reasonable notice in the event of a without cause dismissal, which can be far higher than termination pay under the Employment Standards Act. The option also exists for an employer to allege job abandonment, but there are specific criteria that must be met for an employer to succeed at this argument.
Considering the potential risks, employers should consider speaking with an employment lawyer if an employee is refusing to return to the workplace.
If you are an employer who needs assistance with an accommodation request or termination or an employee who has been wrongfully dismissed, our team of experienced legal professionals can help.