Federally regulated employees who face unjust dismissal may be able to seek reinstatement of their employment after termination. This legal remedy is unique to federally regulated employees and can be a valuable option for employees looking to fight unfair termination and get their careers back on track. In a case against BMO, Monkhouse Law obtained reinstatement for a bank employee.
Federally regulated employees are governed by the Canada Labour Code (CLC). Under the Code, eligible employees may file an unjust dismissal complaint and seek reinstatement with full back pay, allowing them to return to their former position and recover income lost during the period of unemployment.
So how does an employee go from dismissed to reinstated?
We can look to the case M. v. Bank of Montreal, 2020 CanLII 48190 (CA LA), where a dismissed employee was awarded reinstatement.
BACKGROUND AND TERMINATIONS UNDER THE CLC:
Under the CLC, federally regulated employees can only be terminated for the following reasons:
1. Just Cause (this is a high threshold and may involve conduct such as theft or insubordination);
2. Lack of work;
3. Discontinuance of Function; and
4. If the employee is in a managerial role
The employee worked for BMO for 18 years as a Financial Planner until he was terminated because of “changing business requirements” – BMO argued this was a discontinuance of function. The dismissed employee made an Unjust Dismissal Complaint.
Section 240 is the section of the CLC that provides employees the right to fight back against unjust dismissals:
240 (1) Subject to subsections (2) and 242(3.1), any person
• (a) who has completed twelve consecutive months of continuous employment by an employer, and
• (b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
Employees who have been unjustly dismissed should file this complaint within 90 days of their dismissal; if you have been dismissed, contact Monkhouse Law as soon as possible to speak with an employment lawyer.
THE LEGAL ARGUMENT
Under the Canada Labour Code, an employer relying on a discontinuance of function to justify a termination must prove that the discontinuance was bona fide, meaning genuine, as required by section 242(3.1)(a) of the Code.
The bank dismissed the employee from his role but continued to employ nearly 16 other Financial Planners in the same area. The employee cited this as proof that the bank did not actually discontinue the role of Financial Planner, and that he was unjustly terminated for other reasons which did NOT fall within one of the 4 categories outlined above.
After reviewing the facts of the case, analyzing the relevant case law, and assessing the submissions of both the dismissed employee and BMO, the adjudicator found that the Bank did not properly meet the standard for a termination due to discontinuance of a function. The adjudicator formally declared that the employee had been unjustly dismissed.
RESULT & AWARD TO THE EMPLOYEE
After the adjudicator declared the employee was unjustly dismissed, the question remained: what remedy is appropriate? The default remedy for unjust dismissals in CLC adjudications is reinstatement. Case law in Canada has shown time and time again that the CLC is designed to give strong collective-agreement-style rights to federally regulated employees.
Specifically, per Section 242(4) of the CLC, once an adjudicator finds a person has been unjustly dismissed, they have the power to do the following:
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
Monkhouse Law was successful in getting the employee reinstated – but that’s not all. Here’s a breakdown of what the employee received:
- Reinstatement – BMO was required to reinstate the employee to a similar position (making similar income) to his job at the time of his dismissal.
- Net Backpay – BMO was required to pay the employee his full base salary, commissions, and bonuses for the time he was unemployed, PLUS interest on these amounts from the time of his termination.
- Compensation for Loss of Benefits – the employee received the value of employer contributions to his Employee Share Ownership Plan, as well as the monetary value of his benefits for the period of time he was unemployed.
- Reimbursement for Losses Incurred – the employee received partial compensation for the monetary hardship he experienced in other areas of his life as a result of his loss of income due to dismissal.
- Recovery of Legal Costs – the Bank was required to pay for the legal fees the employee incurred by fighting against his unjust dismissal.
This is not the first time Monkhouse Law has successfully helped a dismissed employee get reinstated. In PD v. The Bank of Nova Scotia, Monkhouse Law successfully fought for reinstatement in a case where an employee was wrongfully accused of theft and terminated for just cause.
If you think you’ve been wrongfully dismissed or have questions about reinstatement, contact us for a free 30 minute phone consultation with a licensed legal professional.