Author: Daniel A. Lublin
The termination of a Toronto sports icon had his fans crying foul. Rogers Centre beer vendor, Wayne McMahon, also known as the “Ice…. Cold…. Beer Guy”, was fired last Tuesday by the Rogers Centre food and beverage service provider – for allegedly serving alcohol to a 22 year old mystery shopper, without asking for I.D.
Despite the public support for McMahon, his former employer will not reinstate him – but it does not have to, as a judge will not order a former employee back to the workplace. The best McMahon could expect if he commenced legal proceedings, therefore, would be wrongful dismissal damages for losing his job.
Reinstatement is only attainable in alternative legal forums:
- Where employees pursue claims under provincial or federal human rights legislation, tribunals can order reinstatement. As well, where a wrongful dismissal claim has allegations of discrimination, Ontario courts now have the jurisdiction to order reinstatement. Often, the prospect of having to welcome back a terminated employee is so daunting that employers are more willing to consider a settlement in exchange for a withdrawal of the claim.
- Unionized employees receive the right to reinstatement negotiated directly into their collective agreements, where arbitrators frequently award dismissed employees their jobs back.
- Non-managerial employees working for a federally regulated employer, such as a bank, or airline, can pursue an unjust dismissal complaint under the Canada Labour Code, which permits an arbitrator to award, among other remedies, reinstatement.
- Employers who run afoul of the pregnancy and parental leave protections offered to employees under employment standards legislation face orders requiring them to reinstatement employees.