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 allowing non-unionized employees to file a complaint with the Labour Program if they believe they have been unjustly dismissed.

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 employer take measures to remedy the consequences of an unjust dismissal, including financial compensation for lost wages and reinstatement in employment.

Unionized employees who have been unjustly dismissed are expected to address the matter through their collective agreement’s grievance and arbitration procedures.

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:

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official; made a timely reprisal or genetic testing complaint, based on substantially the same facts, that was withdrawn; had to make a new unjust dismissal complaint because the original complaint was incomplete or contained an error).

The complainant must have completed at least 12 consecutive months of continuous employment.

The complainant is not subject to a collective agreement.

The complainant is not a “manager” (understood in jurisprudence to be a senior management role).

The complainant’s termination of employment is not related to a lay-off because of lack of work or the discontinuance of a function.

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:

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.

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.

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:

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).

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 2022-2023, the Labour Program received 1,032 unjust dismissal complaints and was able to finalize 883, which represents an 86% finalization rate.

As part of the labour standards performance measurements, inspectors endeavour to settle or refer unjust dismissal complaints within 180 days. The average time to finalize or refer unjust dismissal complaints was 160 days.

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