Question Period Note: UNJUST DISMISSAL PROTECTIONS UNDER PART III OF THE CANADA LABOUR CODE

What protections are available to employees who are unjustly dismissed in federally regulated sectors?

• In addition to other labour standards rights and protections, Part III of the Canada Labour Code provides a procedure for making complaints against a dismissal that an employee considers to be unjust.
• Non-unionized employees who believe that they have been unjustly dismissed can file a complaint with the Labour Program.
• Once an unjust dismissal complaint is filed, the Labour Program will assist parties in trying to settle the complaint. Complaints that are not settled can be referred for adjudication to the Canada Industrial Relations Board.
• The Board can order that an unjustly dismissed employee be compensated for lost wages and/or reinstated in their employment.
• Unionized employees who have been unjustly dismissed are expected to address the matter through their collective agreement’s grievance and arbitration procedures.
IF PRESSED ON THE RECENT CASE INVOLVING THE CANADIAN WAR MUSEUM
• The case in question involved a unionized employee who sought a remedy through a grievance filed by her union. This case did not involve the Labour Program.

• On May 15, 2022, CBC news reported on a recent labour arbitration ruling ordering the Canadian War Museum to reinstate a 'star' historian who was unjustly fired. In this case, the arbitrator concluded that the employee’s employment “was unjustly terminated and that the discharge itself was contrary to the CHRA [Canadian Human Rights Act] and human rights protections under the collective agreement” and that the “decision to terminate her employment was directly related to her disability”. He also found that the refusal to allow her to remain off work represented a failure to accommodate. He ordered that she be reinstated and compensated for lost wages, and that she receive human rights damages.

Unjust dismissal provisions under the Canada Labour Code
• The unjust dismissal process is the oldest complaint mechanism in Part III of the Code; it was enacted in 1978. A person who has been dismissed and considers the dismissal to be unjust may make a complaint in writing to the Labour Program, in order to seek reinstatement or compensation.

• Eligibility Requirements:
o The complaint must be made within 90 days of the date of dismissal (the period can be extended if the employee: mistakenly sent the complaint within the 90-day period to the wrong government official; made a timely reprisal or genetic testing complaint, based on substantially the same facts, that was withdrawn; had to make a new unjust dismissal complaint because the original complaint was incomplete or contained an error).
o The complainant must have completed at least 12 consecutive months of continuous employment.
o The complainant is not subject to a collective agreement.
o The complainant is not a “manager” (understood in jurisprudence to be a senior management role).
o The complainant’s termination of employment is not related to a lay-off because of lack of work or the discontinuance of a function.
o The complainant has not made a genetic testing or reprisal complaint concerning the same matter under Part III of the Code, and there is no other redress procedure provided for under Part I or Part II of the Code or another Act of Parliament.

• Process:
o If the complaint is admissible, a Labour Affairs Officer will normally request that the employer provide a written statement of the reasons for the dismissal, then try to assist the parties to settle the complaint.
o If the complaint is not settled within a reasonable period, the complainant can request that the complaint be sent to the Canada Industrial Relations Board for adjudication.
o The Board can again try to settle the complaint; it may also suspend or reject the complaint in some cases (e.g., complaint not within its jurisdiction; subject matter of the complaint already addressed under another mechanism).

• Remedies:
o If the Board finds that the complainant was unjustly dismissed, it can order that the employer:
‒ provide financial compensation for lost wages;
‒ reinstate the employee; and/or
‒ “do any other like thing that it is equitable to require… to remedy or counteract any consequence of the dismissal” (e.g., amending the employee’s disciplinary record).
o This order can be filed in Federal Court for enforcement.

Other provinces and territories
• Only Quebec and Nova Scotia include unjust dismissal provisions in their labour standards legislation.

Recent statistics

• In fiscal year 2021-2022, the Labour Program addressed 1,112 unjust dismissal complaints and were able to resolve 658, which represent a 59% settlement rate. The remaining complaints were referred to the Board for adjudication.

• As part of the labour standards performance measurements, inspectors endeavour to settle or refer unjust dismissal complaints within 180 days. The average time to settle or refer unjust dismissal complaints is 147 days.

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