Can Your Employer Post Your Job Before Firing You?

Yes, your employer can post your job or hire someone to replace you before firing you in Canada. Companies can advertise positions, interview candidates and recruit replacements while an employee is still working for them. Doing so isn’t automatically illegal or considered wrongful dismissal.

However, your employer can’t ignore your employment rights. If you’re replaced and then fired, you may still be entitled to substantial severance pay. If your employer demotes you, significantly reduces your pay or pressures you to resign to make room for someone else, you may have a constructive dismissal claim.

The employment lawyers at Samfiru Tumarkin LLP help non-unionized employees in Ontario, Alberta and British Columbia understand their rights when an employer hires a replacement, changes their job or terminates their employment.

Reviewed by: Lior Samfiru, Employment Lawyer and National Co-Managing Partner

On This Page:

• 1. Posting Your Job
• 2. Hiring Your Replacement
• 3. Laid Off and Replaced
• 4. Pressure to Quit or Accept Changes
• 5. Protected Leave and Contracts
• 6. Severance Rights
• 7. What to Do
• 8. Common Questions

Can an Employer Post Your Job While You Are Still Employed?

Yes. In Canada, an employer can advertise your position while you’re still employed. There is no broad employment-law rule preventing a company from posting a job opening simply because someone currently holds that position.

An employer might advertise a position because it is:

• Planning to replace an employee
• Hiring additional staff for the same role
• Restructuring a department
• Preparing for an employee’s departure
• Recruiting temporary coverage for an employee on leave

The employer does not automatically have to tell you that it has advertised your position.

However, posting your job doesn’t mean your employment has ended. Until your employer terminates your employment or another legally significant change occurs, your existing employment rights and obligations continue.

What if You See Your Exact Job Advertised Online?

Finding a job posting that closely matches your current position can be unsettling, particularly if your employer hasn’t raised any performance concerns or discussed restructuring.

But don’t assume that the advertisement means you’ve already been fired.

Your employer may be planning a replacement, expanding the team or considering other staffing changes.

Save a copy of the advertisement and continue performing your job. If the employer subsequently terminates you or makes significant changes to your role, the posting may help establish what happened.

Can Your Employer Hire Your Replacement Before Firing You?

Yes. An employer can hire a replacement before formally terminating an existing employee. The timing of the new hire doesn’t automatically make the termination illegal.

For example, a company might decide that an employee is no longer the right fit and recruit someone else before announcing its decision.

An employer can ordinarily terminate a non-unionized employee without cause if it meets its legal obligations, including providing the required notice or severance compensation.

Is Hiring Your Replacement Before Firing You Wrongful Dismissal?

Not automatically. Wrongful dismissal commonly arises when an employer terminates an employee without providing sufficient notice or compensation.

The fact that someone else was hired before your dismissal doesn’t, on its own, prove wrongful dismissal or entitle you to extra damages.

However, the circumstances may raise other concerns if the employer:

• Terminates you without providing sufficient notice or severance pay
• Misleads you in a way that amounts to bad faith in the manner of dismissal
• Replaces you because of a disability, pregnancy or another protected characteristic
• Retaliates against you for exercising a protected workplace right
• Makes major unauthorized changes to your employment to accommodate the replacement

If you’ve been dismissed and believe you were replaced unfairly, an employment lawyer can review the circumstances and determine whether you have a wrongful dismissal claim.

What if Your Replacement Starts While You’re Still Working?

If your employer hires someone to perform the same work, it doesn’t necessarily mean you have been dismissed.

However, the situation may change if the employer removes your responsibilities, reduces your compensation, demotes you or fundamentally changes your position without your agreement.

In those circumstances, you may have rights under the law of constructive dismissal, even if your employer hasn’t formally fired you.

Can Your Employer Lay You Off and Hire Someone Else?

Yes, an employer may lay off an employee and subsequently hire someone else. However, the employee’s legal rights depend on whether the layoff was temporary or permanent, what their contract permits and the reason for the employer’s decision.

What if You Were Temporarily Laid Off and Replaced?

A temporary layoff is intended to interrupt employment without necessarily ending the relationship permanently.

However, an employer doesn’t automatically have the right to temporarily lay off every non-unionized employee. If the layoff isn’t authorized by the employment contract or other applicable legal rules, it may amount to constructive dismissal.

Consider this example:

Example: An employee is temporarily laid off. When the employee returns, the employer explains that someone else has taken over their position and offers a lower-paying job with reduced responsibilities.

The employee may have a constructive dismissal claim because of the unauthorized layoff or substantial changes to the terms of employment.

The result depends on the contract, the nature of the layoff and the changes being imposed.

What if You Were Permanently Laid Off and the Employer Hired a Replacement?

An employer may permanently eliminate a position and later decide to recruit someone for similar work.

That doesn’t automatically make the original dismissal unlawful.

However, if you were told your job was eliminated but your employer quickly hires someone to perform essentially the same duties, the circumstances may warrant a closer look, particularly if you suspect discrimination, retaliation or another improper reason.

Even when the layoff is legitimate, you may still be entitled to substantial severance pay.

For more information, see our guide to layoffs in Canada.

Can Your Employer Pressure You to Quit So Someone Else Can Take Your Job?

Your employer can’t automatically avoid paying severance by pressuring you to resign.

An employee may experience pressure to leave after a replacement is hired or a company decides to reorganize its workforce.

For example, an employer might:

• Tell you that you should resign because someone else is taking over
• Reduce your salary or hours substantially
• Remove significant responsibilities from your position
• Demote you without your agreement
• Make your working conditions so difficult that you feel you have no choice but to leave

Depending on the circumstances, this conduct can amount to constructive dismissal.

What Is Constructive Dismissal?

Constructive dismissal can happen when an employer makes a fundamental change to your employment without your agreement, or otherwise seriously breaches the employment relationship.

Instead of being formally fired, you may have the right to treat the employer’s conduct as a termination and pursue severance compensation.

However, not every unpleasant change or difficult workplace situation qualifies.

What if Your Employer Offers You Another Position?

Your employer may offer an alternate role after hiring someone to take over your existing position.

Before accepting or rejecting the offer, consider whether the new job involves:

• Lower salary or reduced compensation
• A demotion or loss of seniority
• Significantly different responsibilities
• Major changes to your hours or work location
• A new employment contract that limits your severance rights

A significant unauthorized change may give rise to constructive dismissal. However, refusing an alternative position can also affect your legal options and, in some circumstances, your obligation to mitigate losses after dismissal.

Don’t assume you must accept the new job, and don’t reject it without understanding the consequences.

You should also have any proposed employment contract reviewed before signing.

What if You’re Replaced While on Leave or a Fixed-Term Contract?

Can Your Employer Replace You While You’re on Medical, Maternity or Parental Leave?

Employers can hire temporary replacements to cover an employee’s duties during an approved leave.

However, employees taking protected leaves may have rights to return to their previous position or a comparable role, along with protections against termination or retaliation because they took the leave.

Disability-related absences can also trigger obligations under human rights legislation, including the duty to accommodate.

If you discover that your position has been permanently filled while you’re on leave, the key questions are whether the employer will honour your return-to-work rights and whether any adverse treatment is connected to your leave or disability.

Being replaced while on a protected leave can raise legal issues beyond ordinary severance pay.

What if You’re Replaced Before Your Fixed-Term Contract Ends?

If you work under a fixed-term employment contract, the employer’s decision to recruit or hire someone else doesn’t automatically end your agreement.

However, if the employer terminates your contract before its agreed expiry date, you may be entitled to compensation based on the remaining contract term, depending on the agreement and applicable law.

An enforceable early termination clause can affect the amount owed.

If the contract ends on its agreed date, the fact that the employer hired someone else to take over afterward doesn’t automatically create a severance entitlement.

Read our guide to fixed-term employment contracts in Canada.

Are You Entitled to Severance if Your Employer Hires Your Replacement?

If your employer fires you without cause, you may be entitled to substantial severance pay, whether or not someone else has already been hired to take your position.

The fact that your employer was planning to replace you doesn’t reduce your severance entitlement.

For many non-unionized employees in Ontario, Alberta and BC, the minimum termination pay required under employment standards legislation is only part of what they may be owed.

How Much Severance Could You Receive?

Your full severance entitlement can depend on factors such as:

• Age: Your age at termination
• Length of service: How long you’ve worked for the employer
• Position: The nature of your job and responsibilities
• Compensation: Salary, bonuses, commissions and benefits
• Availability of similar employment: Your prospects of finding comparable work
• Employment contract: Whether an enforceable agreement affects your rights

Depending on your circumstances, severance can reach up to 24 months’ pay.

There is no automatic formula giving every employee a fixed number of weeks of severance for each year worked.

Use our Severance Pay Calculator to estimate what you could be owed.

If your employer has already presented a termination offer, our Severance Package Review explains what to check before signing.

WATCH: Employment lawyer Lior Samfiru explains important facts about the termination process on the Employment Law Show, including severance offers, forced resignations and your right to seek legal advice before signing.

What Should You Do if Your Employer Posts Your Job Before Firing You?

If you’ve discovered that your employer is advertising your position or has already hired someone to replace you, take these steps.

1. Save the Job Posting

Keep a screenshot or copy of the public advertisement, including the company name, job title, posting date and description.

Preserve relevant emails or other documents you’re entitled to retain, but don’t access or remove confidential employer information without authorization.

2. Don’t Resign

Seeing your job advertised doesn’t mean you must leave. If you resign voluntarily, it could become more difficult to pursue severance compensation.

Speak with an employment lawyer before resigning, particularly if your employer is pressuring you to quit or changing your job.

3. Continue Performing Your Duties

Unless your employer has formally changed your work arrangements, continue meeting your employment obligations.

Avoid confrontations, threats or conduct that could create additional problems.

4. Consider Asking for Clarification

Depending on your situation, you may wish to ask your manager or human resources department whether your position is changing.

If you’re facing allegations of misconduct, retaliation or significant pressure to resign, consider seeking legal advice before confronting your employer.

5. Don’t Sign a New Contract or Resignation Letter Without Advice

Your employer may offer another position or ask you to agree to new terms.

A new agreement could affect your pay, seniority, responsibilities or future severance rights. Have it reviewed before signing.

6. Have Your Severance Reviewed if You’re Fired

If your employer terminates your employment, don’t assume the initial severance offer is sufficient.

An employer’s short signing deadline is not the same as the legal deadline for pursuing severance. The specific offer may expire or be withdrawn, but that doesn’t automatically eliminate your legal rights.

Get advice promptly, especially if you’re facing a change to your job or have received termination documents.

Job Posted Before Termination: Common Questions

Can an employer post your job while you are still employed?

Yes. An employer can advertise your position while you’re still working. Posting a job doesn’t automatically terminate your employment or establish wrongful dismissal.

Can a company post your job before firing you?

Yes. An employer can recruit for a replacement before informing an employee that their employment will end. However, it must still meet its legal obligations when terminating the employee.

Can your employer advertise your job without telling you?

Yes. There is no broad requirement for employers to notify existing employees before advertising their positions. However, an employer must still respect contractual obligations, protected workplace rights and applicable termination laws.

Is it illegal for your employer to hire your replacement before firing you?

Not automatically. Employers can hire replacements before terminating existing employees. Legal issues may arise if the employer fails to provide proper severance, unlawfully changes employment terms or engages in prohibited discrimination or retaliation.

What if your boss hired someone to replace you but hasn’t fired you?

You remain employed unless your employment has been terminated or another legally significant change has occurred. If the new employee takes over your responsibilities and your employer substantially reduces your position or compensation, you may have a constructive dismissal claim.

Can your employer lay you off and hire someone else?

Yes, but your rights depend on whether the layoff is temporary or permanent, the applicable employment laws and your contract. A temporary layoff without proper legal authority may be constructive dismissal. A permanent layoff may trigger severance rights.

Can you sue your employer for posting your job?

A job posting alone isn’t usually enough to support a legal claim. However, you may have a claim if the employer wrongfully dismisses you, makes a fundamental unauthorized change to your employment or violates a protected workplace right.

Do you get severance if your employer replaces you?

If you’re terminated without cause, you may be entitled to severance pay regardless of whether the employer has hired a replacement. Your entitlement depends on your employment circumstances and applicable law.

Should you quit if you find your job posted online?

No. Don’t resign simply because you’ve discovered a job posting. Continue performing your duties and seek advice if your employer begins making major changes or pressuring you to leave.

Being Replaced at Work? Know Your Rights.

Your employer may be able to advertise your position or hire someone to replace you. But it can’t use that decision to avoid its employment-law obligations.

If you’ve been demoted, pressured to resign, offered a different position or fired after your employer hired a replacement, the employment lawyers at Samfiru Tumarkin LLP can review your circumstances and explain your options.

We help non-unionized employees in Ontario, Alberta and British Columbia protect their workplace rights and pursue the severance compensation they’re legally owed.

Before you quit or sign anything, always check first.

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