Termination of employment

The Alberta Human Rights Act prohibits an employer from terminating an employee in connection with a protected ground.
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What does the Alberta Human Rights Act say about terminations of employment?

An employer may terminate an employee with cause (for good reason, sometimes called firing) or without cause (for no reason, sometimes called letting go).

An employer cannot terminate (with or without cause) an employee if the reason for termination is based on one or more protected grounds. For example, an employer cannot terminate an employee for being pregnant or because of their disability. An employer also cannot terminate an employee for making a human rights complaint. An employer can justify a termination where it is reasonable and justified in the circumstances, or based on a bona fide occupational requirement (BFOR).

What you need to know

  • An employer cannot disguise a discriminatory termination as something else.
  • An employer has a duty to accommodate an employee to the point of undue hardship.
  • An employer may terminate an employee if it is reasonable and justifiable, or based on a BFOR.
  • An employee who has experienced a discriminatory termination (termination connected to a protected ground) can make a human rights complaint within one year of the incident.
  • A valid severance agreement or release may prohibit an employee from making an accepted human rights complaint.
  • Employment standards legislation, not human rights legislation, applies to severance and termination pay.

Discriminatory terminations

It is discrimination to terminate an employee because of a protected ground. The protected ground does not need to be the only reason for the termination to be discriminatory. It is still discrimination if the protected ground is only part of the reason for termination.

Examples of discriminatory terminations include terminating an employee related to their:

  • pregnancy
  • disability
  • request for accommodation based on a protected ground
  • request for medical leave based on a protected ground
  • harassment at work due to a protected ground
  • complaint about discrimination to the Commission

What an employer should think about

Before terminating an employee, the employer should make sure none of the reasons for doing so are based on a protected ground. A termination based on a protected ground is discrimination unless the employer can show the termination is reasonable and justifiable in the circumstances, or is a BFOR. The Act does not cover terminations not based on a protected ground, even if they are unfair. Those terminations may still involve other legal issues, such as employment standards.

Where a termination relates to a protected ground, the employer must be able to show they reasonably tried to accommodate the employee to the point of undue hardship. Accommodation can take many forms, such as modifying work duties or allowing a leave from work. Read our Duty to accommodate at work page to learn more.

An employer should not try to disguise a discriminatory termination as reasonable and justifiable. For example, a supervisor terminates an employee, claiming there is a shortage of work. An investigation shows that the employer hired a replacement employee and the reason for the termination was actually the employee’s race. This termination is discriminatory. The employee can make a human rights complaint against the employer within one year of the termination.

Severance agreements and releases

Employers may negotiate severance agreements with employees. Sometimes severance agreements contain a release, either as a clause or a separate document. A release relieves an employer of their obligation or responsibility to an employee. Usually, a release says the employer agrees to pay a sum of money to the employee in exchange for the employee giving up their right to make a claim against or sue the employer.

The Commission cannot deal with a complaint if the release is valid and prohibits the employee from making a human rights complaint. The Commission can deal with a complaint where the release is invalid. Refer to the FAQ “How does the Commission decide if a release is invalid.”

Refer to our Employment: Releases, severance agreements and human rights law information sheet to learn more.

FAQs

If you signed a severance agreement with a release, you must let the Commission know. Sometimes severance agreements may contain a release, which relieves an employer’s obligation or responsibility to an employee. A release can be a clause in the severance agreement or a separate document. A release, depending on whether it is valid, may stop you from making a human rights complaint. If you still decide to file a complaint, the Commission will review the release and determine if it is valid. If you need help understanding what your severance agreement and release says, you should get legal advice.

For further information, refer to the Employment: Releases, severance agreements and human rights law information sheet.

Playing

No. A release is not itself discriminatory. An employee cannot make a complaint simply because they signed a release or because their employer asked them to sign a release. An employee can only make a complaint if they believe the employer discriminated against them under the Act, and they believe their release is invalid.

To decide if a release is invalid, the Commission will consider several questions, including:

  1. How is the release worded?
  2. Was the release unfair (for instance where there is unequal bargaining power and an unfair settlement)?
  3. Was there undue influence that forced the employee to sign the release or severance agreement?
  4. Was the employee given time to seek independent legal advice before signing the release?
  5. Did the employee experience duress? (That is, did the employee experience unlawful pressure to act against their will? Feelings of stress and unhappiness are not enough to prove duress.)
  6. Did the parties signing the release know about their rights?
  7. Did the employee lack the mental capacity to make a good decision about the release?
  8. Are there any other reasons that would make the release invalid?

When disability is one of the reasons for workplace discipline or potential termination, the employer must consider the employee’s medical information about their disability or absence. The employer cannot simply discipline or terminate an employee based on the employee’s absence record. Employers have a duty to accommodate employees with disabilities to the point of undue hardship. For more information, refer to the Duty to accommodate at work page.

An employee who feels they are being terminated or disciplined for a disability-related absence should provide the employer with medical information to support their claim. An employee with a mental health or addiction issue that is affecting their ability to work should be encouraged to get help from a doctor or addictions expert. They should also provide information about their disability to their employer as soon as possible.

The Act allows employees to make a complaint to the Commission if they believe their employer terminated them because of a protected ground. For example, a pregnant employee losing their job for being pregnant, or a person with a disability being fired because they required modified duties. This is discrimination.

The Commission only accepts complaints for terminations based on a protected ground. If the employer terminated the employee for some other reason, the employee may have other options to challenge the termination.

The employee has one year after the termination to make a complaint to the Commission.

Alberta’s Employment Standards Code sets out minimum responsibilities for most employees and employers in Alberta, including termination of employment. If your employer has not provided enough notice or pay in lieu of notice for a without cause termination, contact Alberta’s Employment Standards Office or a lawyer for more help.

Maybe. Your employer has a duty to accommodate your protected characteristic to the point of undue hardship. You must also work together with your employer to find reasonable accommodation.

Contact the Commission to discuss your concerns further.

Employers must accommodate employees with physical or mental disabilities to the point of undue hardship. For example, in the case of medical leave, the employer may fill the position temporarily with the help of a staffing agency.

To justify terminating the employee, the employer must prove it would experience undue hardship by continuing to employ the employee. For example, a business with only two or three specialized employees may not be able to find a qualified person willing to accept a temporary position without undue hardship.

Read the Duty to accommodate at work and Disabilities, illness, and injury pages to learn more.

Employers and unions have a duty to accommodate to the point of undue hardship. If the employer can manage the absence without undue hardship, then it must do so regardless of what the collective agreement says. If the employer enforces the policy without an individual assessment of the circumstances, the employee may have grounds to make a human rights complaint against the employer and/or union. For more information, read the Duty to accommodate at work page.