What is Unjust Dismissal and Who Does it Apply to?
The Unjust Dismissal provisions under Part III of the Canada Labour Code apply to and protect all employees who work for federally regulated employers, including, but not limited to:
First Nation Band Councils and federal Crown corporations such as Canada Post
Road transportation services, including trucks and buses, that cross provincial or international borders
Telecommunications such as telephone, internet, and cable systems
Radio and television broadcasting
Under section 240 of the Canada Labour Code, a federally regulated employee is eligible for a complaint of Unjust Dismissal when they believe there was no justification for the dismissal (i.e., they were dismissed without cause) and:
Have completed 12 months of continuous employment with the employer
Are not subject to a collective agreement
Are not a manager
Have filed the unjust dismissal complaint within 90 days of the dismissal
Were not dismissed as the result of the elimination of a position, or due to lack of work
What is the Difference between Unjust Dismissal and Wrongful Dismissal?
Job reinstatement is an available remedy to seek through the unjust dismissal process. Job reinstatement is not an available remedy for non-federally regulated employees who have been wrongfully dismissed.
It is important to note reinstatement is not ordered in every unjust dismissal case especially where there is a determination by the adjudicator there was cause for the termination or if the relationship between the employee and employer has been irreparably damaged or harmed. Also, although reinstatement is an available remedy, federally regulated employees are not required to seek reinstatement and can seek severance instead. In other words, filling an unjust dismissal complaint does not prohibit an employee from pursuing a civil remedy.
Unjust Dismissal Complaint Handling Process
As a first step, typically an inspector who acts as a mediator will attempt to assist the employee and employer in resolving the complaint. If the inspector is unsuccessful in obtaining a settlement, the employee can make a request that the complaint be referred to an adjudicator.
If an adjudicator is appointed by the Ministry of Labour, a hearing date will be set for both the employee and the employer to present evidence through witnesses. After hearing all the evidence, the adjudicator will make a decision on the dismissal and determine the appropriate remedy.
If the employee’s dismissal is determined to be unjust by the adjudicator, the employer may be ordered to do the following:
Reinstate the employee with or without compensation for lost wages
Pay the employee compensation for lost wages, without reinstating the employee
Do anything that is equitable in order to remedy any consequences of the dismissal (such as pay the employee’s legal fees for example).
If you feel you have been unjustly dismissed or if you have questions about the unjust dismissal complaint process, contact us!