Problematic employees, terminate

When is A Good Time To Terminate A Problematic Employee?

Maintaining a healthy, happy, and functional work environment is very important in any office space or workplace. However, as many people will, unfortunately, experience in their time, one employee can ruin an environment with problematic behavior.


When dealing with an employee who causes issues in a workplace, it might be tempting to simply do away with the problem by terminating that employee and moving on. 


However, it is important to note that, as an employer, you need to be carefully considering the timing of when you choose to terminate an employee. Choosing the wrong moment could see you facing legal battles or paying more money than you would have otherwise.


Timing and Human Rights Claims


For some employees who have been terminated from a position, it can be appealing to see if they can get more money out of their former company by commencing legal action. Some former employees may choose to do this even if their former company treated them fairly and there were no human rights abuses.


Unfortunately, as an employer, there isn’t much you can do if an employee chooses to file a human rights complaint against you. While you can defend yourself against the claim and do your best to prove that the claim doesn’t have any grounds, you may still need to face a lengthy legal battle.


One way to try to avoid something like this happening is to make sure that you are being careful when choosing to terminate a problematic employee. Human rights claims can be made based on someone being discriminated against in the workplace. There is a list of fourteen grounds that are protected in Ontario, including:

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Receipt of public assistance (in housing only)
  • Record of offenses (in employment only)
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation.


If an employee feels that they are discriminated against based on one of these grounds, they may choose to file a human rights complaint. When choosing to terminate an employee, it is very important to determine whether they come within any of the grounds listed above and whether the moment that you have chosen to terminate them may be able to be linked to that ground.


For example, if an employee who is on maternity leave, or who has recently come back from a maternity leave and is currently breastfeeding, is terminated without cause, they may file an application with the Human Rights Tribunal, claiming that they were discriminated against based on the ground of sex. Similarly, an employee who has requested mental health accommodations and who regularly takes time off to deal with mental health concerns may claim that they were discriminated against if they are fired close to taking a leave of absence.


While these situations can be tricky, they can also be navigated with the help of a qualified lawyer giving you the best advice. Try to choose a time that does not seem to point to any discrimination based on the grounds listed above. If you’re not sure when the best time would be, make sure to seek help from a legal professional.


Bardal Factors and Timing


Bardal factors are a list of factors used by employment lawyers to determine the amount of working notice or payment in lieu of working notice that an employee should receive when they are terminated. Within that list of factors, an important consideration tends to be the length of time that the employee has worked in that job. These are important when an employee is terminated from a position without cause, as most employees are.


The longer that an employee has been at a job, typically, the longer their working notice, or the higher their termination pay needs to be. Usually, an employee is given one month of termination pay for every year that they worked at a company. So, if you are considering terminating an employee, it is generally better to do it sooner rather than later, to avoid needing to pay more and more severance.


Figuring Out What Works Best


While balancing avoiding human rights complaints and the added cost of needing to pay more severance pay to an employee can be difficult, it is always important to figure out what works best for your workplace. If the employee in question is causing major problems, such as threatening the state of your business, the happiness of your other employees, or the safety of your space, you may be better off terminating them as soon as possible, even if there are still concerns on your part. 




Problematic employees can be extremely difficult to handle, especially if they have put you in a place where you need to terminate them from their position. 


If you intend to terminate an employee but you’re not quite sure if you’re in a good position to do that, make sure to speak to a qualified lawyer, who can advise you on the best strategy to move forward. Make sure to reach out to the qualified team at Achkar Law to get the best advice on how to handle this complicated workplace issue.


Contact Us


If you are an employer with questions about terminating an employee, our team of experienced human rights 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. 


If you are a small or medium-sized company looking for full-service support with a same-day response, visit our Chief Legal Officer Program page for our strategic solutions.