Termination and severance

Termination

Section 7(1)(a) of the Act prohibits an employer from refusing to employ or refusing to continue to employ an individual based on a protected ground unless the refusal is reasonable and justifiable in the circumstances and based on a bona fide occupational requirement.

Should an employer consider terminating an employee where at least one of the reasons is based on a protected ground, the employer needs to ensure that the termination is reasonable and justifiable in the circumstances. If disability is factor, an employer should ensure that every reasonable attempt at accommodation has been made to the point of undue hardship.

Accommodation can take many forms. If an employee requires accommodation, the employer should engage in an accommodation process that identifies the needs of the employee and the steps that the employer is able to take to accommodate the employee. This could include job modification, workplace modification or referrals to employee assistance programs. You can read more about the duty to accommodate and undue hardship.

In some situations, it is unlikely that a termination could be justified. For example, after a new supervisor was hired, an individual's employment was terminated. Later the employer investigated and learned that the reason for the termination was clearly because of race. In this case, the termination would be considered to be discriminatory.

Severance agreements and releases

Employers sometime negotiate severance agreements with employees. Severance agreements often contain a "release" that describes the end of the employer's responsibility towards the employee. A valid release relieves an employer of their obligation or responsibility to an employee, as specified by the release. Normally an employee cannot make a human rights complaint simply because the employee has been asked to sign a severance agreement that contains a release. This is a common business practice.

Nonetheless, if an employee signs an agreement that contains a release, they may still have the right to make a human rights complaint if they believe their employer has discriminated against them and if they believe the release they signed was not valid. The Commission must be notified if there is a signed release, and a copy of the release must be provided to the Commission.

You can read Alberta human rights tribunal decisions on severance agreements. All decisions released after January 1, 2000 can be accessed free of charge through the Canadian Legal Information Institute (CanLII) website. Search the key words "severance agreement."

Employment standards

The Employment Standards Code may apply when terminating an individual's employment. The Code sets out minimum responsibilities of employers and employees related to termination, including situations where notice is not required. You can read more about employment standards for termination.

Revised: October 11, 2011

 

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