Terminating Toxic Employees: Legal Aspects of Firing Them

Terminating Toxic Employees: Mitigating the Risks


In every workplace, a harmonious and productive atmosphere is essential for both employees and employers alike. However, what happens when a single individual’s toxic behaviour threatens the well-being of the entire team and the organization as a whole? Addressing such situations is not only a matter of company culture but also a legal responsibility.

Terminating toxic a employee is a complex process that requires a delicate balance between protecting your organization and adhering to the law. In this article, we will delve into the legal aspects surrounding the termination of toxic employees, offering insights to help you navigate this challenging terrain with confidence.

From recognizing toxic behaviour to understanding the legal framework and steps involved in the termination process, we’ll provide you with the knowledge and strategies needed to effectively handle these difficult situations. So, let’s dive into the world of terminating toxic employees and explore the legal considerations that underpin this critical aspect of workforce management.

Navigating the Risk of Retaliation: When Toxic Employees Claim Human Rights Violations

While terminating a toxic employee is often necessary for the well-being of your organization, it can also carry a risk of retaliation. In some cases, a terminated employee may become vindictive and claim a human rights violation related to their firing. This added layer of complexity requires careful consideration and a proactive approach to mitigate potential legal challenges.

Strategies to Mitigate Risk

  • Document Thoroughly
    • Maintain comprehensive records of the employee’s performance issues, behavioural problems, and any disciplinary actions are taken. These documents will serve as evidence of legitimate reasons for termination.
  • Follow Company Policies
    • Ensure that your organization’s policies and procedures are consistently applied. Be transparent about expectations and consistently enforce policies to demonstrate fairness.
  • Engage in Open Communication
    • Communicate clearly and honestly with the employee throughout the termination process. Address concerns, explain the reasons for termination, and offer support, if appropriate.
  • Seek Legal Counsel
    • Consult with an employment lawyer who specializes in human rights issues. They can guide compliance with human rights legislation and help navigate any potential claims.
  • Offer Mediation
    • In some cases, consider offering mediation as an alternative to litigation. Mediation can help resolve disputes more amicably and avoid protracted legal battles.
  • Maintain Confidentiality
    • Respect the employee’s privacy and avoid discussing the details of the termination with other employees. Confidentiality can prevent further damage to the employee’s reputation.
  • Conduct an Internal Review
    • Evaluate your organization’s policies and practices to ensure they align with human rights legislation. Make necessary adjustments to minimize future risks.
  • Educate Managers and Employees
    • Provide training to managers and employees about human rights laws, discrimination, and harassment prevention. Encourage a culture of inclusivity and respect.
  • Obtain Legal Advice
    • Seek legal counsel to assess the specific circumstances of the termination and advise on the best course of action.
  • Cooperate with Human Rights Authorities
    • If a human rights complaint is filed, cooperate fully with the relevant human rights authority’s investigation. Respond promptly and provide requested information.

Balancing the need to terminate a toxic employee with the potential legal risks requires a proactive and well-informed approach. Consult with legal professionals to develop a strategy tailored to your specific circumstances.

Mitigating the Risk When Terminating a Toxic Employee: Bardal Factors and Legal Considerations

Terminating a toxic employee, as previously discussed, requires a delicate balance between protecting your organization and adhering to the law. One crucial aspect of this process is considering the Bardal factors, which play a significant role in the legal landscape surrounding employee termination.

The Bardal factors, derived from the landmark case Bardal v. Globe & Mail Ltd., are a set of principles that guide the assessment of reasonable notice periods in employment termination cases. While they primarily apply to the determination of reasonable notice, these factors can also play a crucial role in mitigating risks when dealing with toxic employees.

Here are some key Bardal factors to consider:

1. Length of Employment

  • The longer an employee has been with your organization, the greater the reasonable notice period typically required. When terminating a toxic long-term employee, the risk of a legal challenge may increase, making it essential to have a solid foundation for the termination.

2. Employee’s Age

  • The age of the employee can impact the reasonable notice period. Older employees may require longer notice or severance. This factor can influence your decision-making process when dealing with toxic behavior.

3. Position and Responsibilities

  • Consider the employee’s role within the organization. High-level executives or employees with unique skills may warrant longer notice or severance. Ensure that your termination process is well-documented and follows established policies to mitigate risks.

4. Job Market Conditions

  • The state of the job market can affect the reasonableness of termination. In a competitive job market, employees may find new opportunities more quickly, potentially reducing the notice period required.

5. Efforts to Find New Employment

  • Employees have a duty to mitigate their losses by actively seeking new employment after termination. As an employer, documenting your efforts to assist the terminated employee in finding new work can help mitigate potential legal challenges.

6. Special Circumstances

  • Unique circumstances surrounding the termination, such as the employee’s health or personal situation, may impact the reasonable notice period. Be prepared to provide compassionate support and maintain documentation related to such situations.

Mitigating the risk when terminating a toxic employee involves a thorough assessment of these Bardal factors. It’s essential to follow established policies and procedures consistently, maintain detailed records of the termination process, and seek legal counsel when necessary.

Incorporating these considerations into your approach can help strike the right balance between safeguarding your organization and minimizing potential legal challenges when dealing with toxic employees.

How an Employment Lawyer Can Assist in Terminating a Toxic Employee

The process of terminating a toxic employee can be complex, riddled with legal challenges and potential pitfalls. Employers navigating this delicate terrain often seek the guidance and experience of an employment lawyer. Here’s how legal counsel can play a crucial role in managing the termination of a toxic employee:

1. Legal Compliance

  • Employment lawyers are well-versed in employment laws and regulations, ensuring that your termination process complies with all relevant legislation. They can help you avoid costly legal missteps that might arise from an improperly handled termination.

2. Risk Assessment

  • Experienced employment lawyers can assess the potential legal risks associated with the termination. They can provide a thorough analysis of the situation and help you determine the best course of action to minimize legal exposure.

3. Documentation

  • Adequate documentation is essential when dealing with toxic employees. Employment lawyers can guide you in creating and maintaining detailed records of the employee’s behaviour, performance issues, and the steps taken to address them. This documentation can be invaluable in case of legal disputes.

4. Legal Strategy

  • Crafting a well-thought-out legal strategy is crucial when facing potential legal challenges. Employment lawyers can help you develop a strategy tailored to your specific situation, including negotiations, severance agreements, or potential litigation.

5. Communication

  • An employment lawyer can assist in crafting clear and legally sound communication throughout the termination process. They can help you communicate the reasons for termination to the employee and any potential legal consequences.

6. Mediation and Negotiation

  • In some cases, it may be beneficial to engage in mediation or negotiation with the toxic employee to reach a mutually acceptable resolution. Employment lawyers can facilitate these discussions and work toward a resolution that minimizes the risk of protracted legal battles.

7. Litigation Defense

  • In the unfortunate event that a toxic employee initiates legal proceedings, having an employment lawyer on your side is essential. They can defend your organization’s interests in court, advocating for a favourable outcome.

8. Severance Agreements

  • Employment lawyers can assist in drafting and negotiating severance agreements. These agreements can help mitigate risks by providing a clear framework for the termination and any related compensation.

Navigating the complexities of terminating a toxic employee requires a comprehensive understanding of employment law and an ability to anticipate potential legal challenges. Employment lawyers bring invaluable knowledge to this process, helping employers protect their interests while minimizing legal exposure.

When facing the challenging task of terminating a toxic employee, consulting with an employment lawyer can provide peace of mind, ensuring that your actions are legally sound and that you’re well-prepared to address any legal consequences that may arise.

Contact Achkar Law

If you are an employer with questions about terminating an employee, our team of experienced employment lawyers at Achkar Law can help.

Contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist. 

Dealing with a Toxic Employee? Get Legal Help from Achkar Law

Managing a toxic employee can be challenging and detrimental to your workplace environment. At Achkar Law, we provide experienced legal guidance to help you address and resolve such situations effectively. Our team supports you in implementing strategies that maintain a positive and productive work atmosphere, ensuring legal compliance and reducing potential conflicts.



Can Your Off-Duty Behaviour Get You Fired?

Can You Record a Conversation in Ontario?

Can I Get Fired for Making a Complaint Against My Employer?

Insubordination In The Workplace: Can You Be Terminated?

Misconduct in the Workplace