Unjust dismissal is ONLY available to federally regulated employees, aka federal workers, while wrongful dismissal is a Common Law remedy for non-unionized workers. Non-union federal workers in non-management positions who believe they have been unjustly dismissed have the right to bring an “unjust dismissal” complaint under Canada Labour Code.
In the federal sector, non-union employees in non-management positions who believe they have been unjustly dismissed have the right to bring an “unjust dismissal” complaint under Division XIV of Part III of the CLC (s. 240(1)). Employees must have completed 12 months of continuous employment in order to make a complaint (s. 240(1)(a)), and complaints must be made within 90 days from the dismissal (s. 240(2)). Adjudicators have broad remedial powers under the CLC, including the power to reinstate an unjustly dismissed employee and/or award full compensation, which is not limited to CLC severance pay or common-law damages.
Wilson v. Atomic Energy of Canada Limited
The Canadian legal landscape was drastically altered with the Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.
The Supreme Court of Canada confirmed that the protection against “unjust dismissal” under the CLC is similar to the protection against discharge without cause that unionized employees enjoy under a collective agreement; thus, unlike other non-unionized employers, federal non-unionized employers may not dismiss an employee without cause simply by providing the required notice and severance.
The Supreme Court has held that held that federally regulated employers cannot terminate the employment of a non-managerial employee, who has been employed for more than 12 months, without just cause. The Supreme Court of Canada confirmed that under s. 246, dismissed employees may choose to pursue their common law remedy of reasonable notice or pay in lieu in the civil courts instead of availing themselves of the dismissal provisions and remedies in the Canada Labour Code. But if they choose to pursue their rights under the Unjust Dismissal provisions of the Canada Labour Code, only those provisions apply.
In other words, a federal worker has the option 1) to sue under the Common Law Doctrine of wrongful dismissal and sue for reasonable notice or 2) if the federally regulated employee so choose, file a complaint of unjust dismissal under CLC.
S. 168 of the Canadian Labour Code clearly stated that you can’t contract out the termination for cause only clause for workers who have been working in a company for longer than one year of which the Canadian Labour Code applies. Even if a full and final release has been signed, it wouldn’t be valid and enforceable.
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". 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 still files a complaint 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.
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.
There are two key limitations for unjust dismissal complaints. Pursuant to s. s.242 (3.1) of the 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.
Click here to learn more about Unjust Dismissal from the Government of Canada Website.
Click here to learn about the Canada Labour Code and how they apply to your workplace from the Government of Canada Website.
What You Need An Employment Lawyer?
Canada Labour Code is highly complex and an unjust dismissal claim is technical. If you are a federally regulated employee, and you think you have been unjustly dismissed, or if you are an employer being served with a claim of unjust dismissal, you are highly recommended to seek legal advice immediately from an experienced employment lawyer. In some cases, you have a VERY LIMITED amount of time to act on it, or be forever hold your peace.
Federally Regulated Employee FAQs:
Why HTW Law – Employment Lawyer?
Are you looking for knowledgeable, professional, patient, responsive employment lawyer? HTW law – Employment Lawyer can assist you with all aspects of employment law.
HTW Law can assist with the following areas of employment law: