Wrongful Dismissal Damages in the Human Rights Code Context

It is common knowledge that an employer has a duty to provide reasonable notice, or payment in lieu of same, to an employee who is to be terminated without cause. The reason is that the employee should have a fair opportunity to find alternative employment without having the present employment contract come to a sudden end, as such would be contrary to the reasonable expectations of the parties. The notice, or payment in lieu of notice, is calculated based on various factors, including the employee's position, length of service, and age, as well as the availability of similar employment.

What is surprising to some employers is that this analytical framework changes where an employee is dismissed in contravention of the Human Rights Code. The governing test for wage compensation involves an evaluation of where the employee would have been had the discriminatory acts not occurred. What this means is that an employee with only a few days of service, dismissed during the probationary period, may be entitled to several months, if not years, of wages, up to the date the Human Rights Tribunal determines the employment contract would have continued but for the contravention of the Human Rights Code. Given this liability, the employer must tread carefully where the termination of employment may contravene the Human Rights Code.