Unjust Dismissal
The Canada Labour Code (the “Code”) regulates federal workplaces. It provides minimum employment standards and rules about occupational health and safety, amongst others.
The Code imposes a very high threshold on employers about how and when they can dismiss their employees. An employer must have “just cause” to terminate employment, otherwise, the dismissal is deemed unjust.
An “unjust dismissal” occurs when there was no just cause or other justification set out in the Code (such as, “lack of work” or “discontinuation of service”). Unjust dismissals can also apply to constructive dismissal situations (i.e. implied dismissal). A severance package offered to the terminated employee does not justify an otherwise unjust dismissal.
Section 240-246 of the Code provides a procedure for federally regulated employees to make complaints against employers for unjust dismissals.
Before filing an unjust dismissal complaint, the employee may request in writing, a written statement from the employer for the reasons of their dismissal. The employer must respond within 15 days after the request is made.
If the employer does not respond or provide a justified reason for the dismissal, the employee may file a complaint at the Labour Program office against their employer. To be eligible to make an unjust dismissal complaint, the employee must meet these criteria:
The employer must be federally regulated. Employers who are federally regulated include, but are not limited to:
a. Banks
b. Interprovincial/International Transportation (railway, postal services, trucking etc.)
c. Airports and Air Transportation
d. Telecommunications
e. Fisheries
f. Uranium Mining and Processing
g. First Nation Band Councils and Crown Corporations
The employee must have completed at least 12 months of continuous employment with the same employer.
The employee must not be covered by a collective agreement through a union membership.
The employee must make the complaint within 90 days of the termination.
The employee must not be a manager.
The dismissal was not a result of “lack of work” or “discontinuation of a function”.
Unless the employer terminated an employee with cause (and that cause is indeed justified), the onus is then on the employer to demonstrate that the termination was for valid economic reasons, such as “lack of work” or “discontinuation of a function.” If the employer cannot demonstrate a justification for the employee’s termination, the employee may be remedied by reinstatement, compensation for lost income, or any other remedy to place the employee back in the position before the dismissal.
An unjustly dismissed employee may also have a wrongful dismissal claim under common law. However, there are rules against double recovery.
