Being fired: Employment and identity.

• Author: Gordon, Matt

Clearing Your Name: Some Basic Rules if You've Been Fired for Fraud

You've just been fired. It's probably affecting you financially and emotionally to a great degree. Worse yet, your (now former) employer is saying it is "for cause" or "just cause", possibly because of as serious an accusation as committing fraud or theft against the company. A just cause firing is not accompanied by notice or by a severance payment, with the implicit understanding that the employee's conduct has been sufficiently bad as to waive those rights.

The impact being fired has on someone is very well recognized in Canadian law. This can be seen in three Supreme Court of Canada cases. In Reference Re Public Sector Employee Relations Act (Alta.), [1987] 1 SCR 313, the Court said that "a person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being." The Court applied this opinion to employee firings in Machtinger v HOJ Industries Ltd., [1992] 1 SCR 986, in which it said that "it has been pointed out that the law governing the termination of employment significantly affects the economic and psychological welfare of employees." The question that arises is what happens when an employer unjustly fires an employee without recognizing this impact on his or her life, and what a fired employee can ask for if he or she seeks to be compensated.

What can the legal system do about it? Can I get money? Can I get my old job back?

Courts can give certain remedies and not others. The general rule is that when people sue and win, they get put back in the position they were before they were wronged. However, certain conduct on the part of the employer can change that. In Honda Canada Inc. v Keays, 2008 SCC 39, an employee was fired for refusing to meet with an employer-selected doctor after the employee provided doctor's notes which the employer did not accept as legitimate. He sued for wrongful dismissal, eventually receiving damages for mental distress. This was a sum set by the Court that exceeded the amount that would have put him in the situation he was in before. These damages are colloquially called "Honda Damages" after this case. They are different from aggravated or punitive damages, neither of which the Supreme Court of Canada felt Keays should receive, in that they do not require the employer to act in a particularly egregious manner. All that was required for Keays to receive mental distress damages was for his...