27 Apr Can My Employer Ask Me to Train My Replacement Before Letting Me Go in Ontario?
It is a common practice for employers or managers to ask a recently terminated employee to train their replacement before their notice period ends. From the employer’s perspective, the employee understands the ins and outs of the role better than anyone else in the organization and is therefore well positioned to assist with the transition. From the employee’s perspective, however, this request can feel frustrating and unfair.
In Ontario, the answer is yes: in many cases, an employer can ask a terminated employee to train their replacement – but there are important legal limits.
According to the Employment Standards Act, 2000 (ESA), an employer may terminate employment without cause if they provide termination notice or pay in lieu of notice. If an employee is required to continue working through their notice period (referred to as “working notice”), the employer must continue to pay regular wages and cannot make significant changes to the fundamental terms of employment.
During a period of working notice, the employer may continue to assign duties, which can include knowledge transfer, transition support, and training a replacement. However, these duties must be reasonable and generally consistent with the employee’s position, skills, and level of responsibility.
In addition to the ESA, Ontario’s common law requires employers to act in good faith in the manner of dismissal. This includes an obligation not to engage in conduct that is unfair or in bad faith during the termination process. Where an employer’s conduct is found to be misleading, unduly insensitive, or otherwise unfair, a court may award additional damages.
When is an Employee Not Required to Train Their Replacement?
An employee is not obligated to train their replacement if the employer provides pay in lieu of notice. In such cases, the employment relationship ends immediately, and the employee has no obligation to perform further work.
Similarly, where an employee resigns and provides the required notice – whether under the ESA or an enforceable employment contract – their obligation to perform work ends at the conclusion of that notice period.
When can Training a Replacement Become Legally Problematic?
The issue is not the act of training a replacement itself, but whether the request reflects a breach of the employee’s legal rights.
Constructive Dismissal Risk
A request to train a replacement may contribute to a finding of constructive dismissal if it is part of a unilateral and substantial change to a fundamental term of the employment relationship. This may arise where, for example, the employee is effectively demoted, stripped of core responsibilities, or placed in a role that is humiliating or significantly below their qualifications. Courts will assess the situation objectively, considering whether a reasonable person in the employee’s position would view the change as substantially altering the terms of employment.
Bad Faith in the Manner of Dismissal
Employers have a duty to act in good faith in the manner of dismissal. Requiring an employee to train their replacement could be relevant to a bad faith analysis if the request is carried out in a manner that is misleading, unduly insensitive, or intended to humiliate the employee. However, the mere fact of training a replacement, on its own, will not typically be sufficient to establish bad faith.
Human Rights Considerations
Under the Human Rights Code, employers are prohibited from discriminating on the basis of protected grounds such as age, disability, sex, gender identity or expression, religion, race, and ethnicity. A request to train a replacement may raise human rights concerns if it forms part of discriminatory treatment – for example, where the employee is being replaced for a discriminatory reason or is treated adversely during the transition due to a protected characteristic.
If you are an employee who has been recently terminated and would like to better understand your legal rights and entitlements, please contact KCY at LAW at 905-639-0999 to book your consultation today.
