To File A Federal Worker Complaint
Federally regulated employees are governed by the Canada Labour Code, R.S.C., 1985, c. L-2 (CLC). If you are a federally regulated employee aka federal worker, when you have been unlawfully terminated, you have the option to sue for wrongful dismissal or constructive dismissal under Common Law or to sue for unjust dismissal under Canada Labour Code.
Federal Worker Wrongful Dismissal Claim
Time Limit: Within 2 years after termination
Legal Forum: Small Claims Court / Superior Court
Wrongful dismissal involves an employer terminating an employee without just compensation, or a termination in reprisal against by employer. In case of wrongful dismissal you can claim: 1. wrongful dismissal, or 2. ESA Notice plus severance if certain conditions are met. Notice is not required for termination for cause.
In Ontario, you are not required to prove that you have suffered financial damage from the termination, or that you have been terminated without notice. Once you file the claim, the employer has to prove that either 1) that you have been provided with sufficient working notice or payment in lieu of notice; or 2) you have been terminated for cause due to gross misconduct during the employment.
Federally Regulated Employee Constructive Dismissal Claim
Time Limit: Within 2 years after constructive dismissal
Legal Forum: Small Claims Court / Superior Court
When an employer (1) unilaterally makes a change to an express or implied term of the employment contract that a reasonable person in the shoes of the employee would view as substantially altering an essential term of the contract, or (2) otherwise acts in a manner that would lead a reasonable person to conclude that the employer no longer intends to be bound by the contract, the employer commits a repudiation of the contract, which entitles the employee to consider himself or herself constructively dismissed and to claim damages in lieu of reasonable notice.
Under the first branch of the test, constructive dismissal may occur through substantial, unilateral changes to essential employment terms such as compensation (salary, benefits, or bonus), job responsibilities, reporting functions within the company hierarchy, working conditions, hours of work, the term of employment, or the employee’s location of work.
Under the second branch of the test, no breach of a specific employment term need occur; rather, constructive dismissal occurs where the employer’s overall conduct indicates it no longer intends to be bound by the employment contract, for example, by a series of actions that cumulatively makes the employee’s position intolerable.
Federal Worker Unjust Dismissal Claim Under CLC
Time Limit: Within 90 days after unjust dismissal
Legal Forum: Labour Program Office
Unjust dismissal under CLC encompasses both wrongful dismissal and constructive dismissal under common law. The courts have held that the unjust dismissal provisions of Part III of the Canada Labour Code also apply to "constructive dismissal".
The Federal Court of Appeal decision in Srougi v. Lufthansa German Airlines, (1988), 93 N.R. 244 (FCA) has held that once once it has been established that a constructive dismissal has occurred, CLC unjust dismissal provisions apply. The individual terminations of employment provisions in sections 230 to 234 of CLC, and the severance pay provisions in sections 235 to 237, also apply in cases of constructive dismissal.
In a constructive dismissal, the employer has not directly fired the employee, but has failed to comply with the contract of employment in some major respect or has unilaterally and substantially changed the terms of employment or expressed an intention to do either of these. In such a case, the employee must clearly indicate within a short period of time, that he or she does not accept the new conditions of employment. Often the employee feels compelled to resign rather than accept the new conditions of employment. This may constitute constructive dismissal.
An employee files a complaint of unjust dismissal with an Inspector to start the process. Complaints can be filed with any Labour Program office within 90 days of the unjust dismissal. Unjust dismissal is only available to workers who have been 1) working for a federally regulated business and 2) who has been working there for over a year and 3) not in a managerial position.
There are two key limitations for unjust dismissal complaints. Pursuant to s. s.242 (3.1) of the Canada Labour Code, no unjust dismissal complaint shall be considered by the Board under in respect of a person if:
that person has been laid off because of lack of work or because of the discontinuance of a function; or
a procedure for redress has been provided under Part I or Part II of this Act or under any other Act of Parliament.
The first excludes bona fide layoffs and the discontinuance of a function from unjust dismissal complaints. The second prevents the Board from considering a complaint where another “procedure for redress” exists under any other Act of Parliament.
Federal Worker Claim Under CLC Other Than Unjust Dismissal
For all claim unrelated to unjust dismissal, including reprisal complaints, you can file the complaint to Canada Industrial Relations Board directly since July 29, 2019. You have 6 months to file the complaint. Since July 29, 2019.
Federal Worker Claim Human Rights Claim Under Canada Human Rights Act
If you are working in one of the federally regulated private sector and you have been harassed and discriminated against because of race, sex, age, disability, etc.... in your workplace, then you are entitled to file a complaint to the Canadian Human Rights Commission. Do that if you are a federal worker, but you have been discriminating against during a job / event / project involving co-workers that are not in a federally regulated business, then you would file the complaint against that organization / co-worker to the Human Rights Tribunal of Ontario instead. The harasser MUST be federally regulated for you to file a complaint to Canadian Human Rights Commission.
Click here to learn more about federally regulated employees.
Click here to learn about the Canada Labour Code and how they apply to your workplace from the Government of Canada Website. Click here to learn more about Unjust Dismissal from the Government of Canada Website. Click here to learn more about Unjust Dismissal from the Government of Canada Website. Click hereto learn more about Constructive Dismissal from the Government of Canada Website.
Federally Regulated Employee FAQs:
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