Under the Canada Labour Code, Unjust Dismissal rules provide a procedure for federally regulated employees to complain against a termination that they consider unjust. It allows them to seek extraordinary remedies, including reinstatement and back pay if they have been terminated without cause. The complaints need to be filed with 90 days since the termination, and employees need to be mindful to meet this deadline. Read on to learn about unjust dismissal and how the process works.
Who Can Claim Unjust Dismissal?
To determine if unjust dismissal applies in your case, employees must first establish if their employer is federally or provincially regulated. Federally regulated employers are governed by the Canada Labour Code (“CLC”).
Employers who are federally regulated include (but are not limited to):
- Bank Institutes (example: CIBC bank)
- Interprovincial / international transportation (example: railway, post service, trucking)
- Airports and Air Transportation (example: Air Canada)
- Television, Telephone, Radio and Cable systems (example: Rogers / Bell)
- Grain Elevators
- Uranium Mining and Processing
- First Nation Activities and Crown Corporations
Searchable lists of federally regulated employers in Canada is available on our website.
Unjust Dismissal vs Wrongful Dismissal
Only employees who are federally regulated in Canada are entitled to claim for unjust dismissal upon their termination of employment, otherwise it would be considered a “wrongful dismissal”. A huge difference between an unjust dismissal and wrongful dismissal is that with a wrongful dismissal you can only claim additional notice of termination (meaning extra compensation) whereas with an unjust dismissal you may also seek reinstatement in addition to additional notice of termination. Note that reinstatement is not always granted, nor is it required. If an employee is not comfortable being reinstated, they can solely seek monetary compensation.
Unjust Dismissal and Canada Labour Code
Under section 240 of the Canada Labour Code, an employee is eligible to submit an Unjust Dismissal Complaint when they have been terminated without cause from a federally regulated employment, and:
- Has completed 12 months of continuous employment;
- Is not subject to a collective agreement;
- Is not a manager;
- The unjust dismissal complaint is filed within 90 days of the dismissal; and
- The dismissal was not a result of “lack of work” or “discontinuance of a function”.
A detailed primer on Unjust Dismissal is available here.
How to File an Unjust Dismissal Complaint
Step 1: Complete an Unjust Dismissal Form
Step 2: Gather all evidence documents.
Step 3: Sent Unjust Dismissal Form and Termination Letter to the nearest Canada Labour Program office (click here for contact information).
Step 4: Await a response of confirmation of receipt of application from the Labour Program (takes anywhere between 4-8 weeks) and letter of confirmation of admissibility of the Unjust Complaint (takes anywhere between 8-12 weeks). Note: if the Labour Program indicates your claim does not meet the criteria, you may appeal the decision by following the steps in the letter.
Step 5: A Labour Program Inspector will inform the employer of the complaint and will request additional details surrounding the dismissal.
Step 6: A settlement conference will be held where the Labour Program Inspector will act as the Mediator and assist both parties in coming to an amicable resolution. The majority of the Unjust Dismissal complaints are resolved at this stage.
Step 7: If the complaint is not settled, request an adjudicator to be assigned.
Step 8: An adjudicator will hear the complaint to determine whether or not the dismissal is unjust and render a decision.
Note that at any stage you can hire representation or be self-represented.
Options Available To Federally Regulated Employees
In short, federally regulated employees have three choices upon termination:
- Accept the termination and settle with the employer;
- Accept the termination, but claim additional severance under the Canada Labour Code or the common law;
- Reject the termination, and claim Unjust Dismissal, seeking the remedy of reinstatement.
Unjust Dismissal Ontario and Monkhouse Law’s Success with Unjust Dismissal Complaints
Monkhouse Law Employment Lawyers have been successful in a variety of unjust dismissal complaints, some of the most notable ones are outlined below.
P.D. v. Bank of Nova Scotia: A bank employee was being accused of theft and dishonesty but upon hearing the case, the Adjudicator found that the allegations were meritless. The employee was reinstated with full back pay.
Maticevic v. Bank of Montreal: A bank employee was dismissed without cause, the bank alleged that it was a legitimate layoff; however, the Adjudicator disagreed and awarded the 18-year employee 22 months of back pay for their dismissal. The employee was also reinstated into his position at the bank. Learn more about how Monkhouse Law was successful in reinstating bank employee after unjust dismissal.
If you have been terminated from a federally regulated employer, it is important to ensure you know your options and explore whether filing an Unjust Dismissal Complaint is best in your circumstances.
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