Division XIV – Unjust Dismissal of Part III of the Canada Labour Code provides a procedure for making complaints against a dismissal that an employee considers to be unjust. The following questions, answers and case studies will be of interest to employers and employees under federal jurisdiction. Pamphlet 1 – Summary of this series describes the types of businesses covered by the Code. It is available from any Labour Program offi ce and on the Labour Program website.
EXCERPTS FROM “Information on LABOUR STANDARDS” – PUBLISHED BY Human Resource and Development Canada – NOTE THIS APPLIES ONLY TO FEDERAL EMPLOYEES.
1. Who is entitled to protection from unjust dismissal? All employees, managers excluded, who have completed at least 12 consecutive months of continuous employment with the same employer and who are not covered by a collective agreement. Employees should contact the Labour Program if they have questions regarding management status.
2. What can employees do if they feel that they have been unjustly dismissed? a) They can request, in writing, a written statement from their employer giving the reasons for dismissal. The employer must reply within 15 days after the request is made. b) They can file a complaint alleging unjust dismissal at any Labour Program office no later than 90 days from the date of the dismissal.
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5. Does the complaint automatically go to adjudication?
No. The Minister of Labour decides whether or not to appoint an adjudicator. If an adjudicator is appointed, the date is set for a hearing at which the employer and employee can present evidence. With few exceptions, it is up to the employer to prove that the dismissal is justifi ed. The procedures used at an adjudication hearing are less formal than those in a civil court. The rules of evidence are relaxed to ensure that all relevant material is available to the adjudicator. Parties are free to call on witnesses and choose whether they will be represented by a lawyer. After hearing all the evidence, the adjudicator must make a decision on the justness of the dismissal and determine the remedy entitlement.
6. What are the powers of an adjudicator?
An adjudicator is empowered to consider the complaint and render a decision which is binding on both parties. Where an adjudicator fi nds the dismissal to be unjust, the employer may be ordered to: a) reinstate the employee with or without compensation for lost wages; b) pay compensation for lost wages, without reinstating the employee; or c) do anything that is equitable in order to remedy any consequences of the dismissal; e.g., clear an employee’s record of any references to the dismissal, pay legal costs, etc.
7. Can an adjudicator’s decision be appealed?
No. The decision of an adjudicator is fi nal. It cannot be appealed in court. However, it may be subject to an application for review by the Federal Court of Canada under certain limited circumstances.
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THE GUIDE PROVIDES USEFUL CASE STUDIES TO ASSIST – BASED ON DECIDED CASES:
- Case 1 – Lack of work/discontinuance of a function. Special issue: Employer’s selection criteria to lay off an employee.
- Case 2 – Alleged reason for dismissal: Poor work performance. Actual reason for Dismissal: Discrimination. Special issue: Double jurisdiction (other redress).
- Case 3 – Unsatisfactory work performance. Special issues: Degree of orientation and employer’s disciplinary practices not followed.
- Case 4 – Unsatisfactory work performance. Special Issues: Competent before transferred to new position. Employer’s disciplinary policy not applied.
- Case 5 – Insubordination, lack of interpersonal skills. Special issues: Culminating incident. Progressive discipline applied. Aggravating factors.
- Case 6 – Violation of company rules. Culminating incident. Special issues: Progressive discipline system. Appraisals show improvement after every disciplinary action taken.
- Case 7 – Misappropriation of customer’s funds. Falsifying employer’s records. Failure to report irregularities.
- Case 8 – Loan-sharking. Criminal behaviour. Special Issues: Private life vs. work misconduct. Damaged employer’s image. Confl ict of interest. Summary dismissal.
- Case 9 – Misappropriation of customer’s funds. Dishonesty. Special issues: Aggravating factors. Concept of honesty and trustworthiness in employment relationship.
- Case 10 – Incompetence. Special Issues: Highly competent before promotion. Application of corrective discipline approach. Personality confl ict. Mitigating factors.
- Case 11 – Lack of interpersonal skills. Unsatisfactory work performance. Special issues: Mitigation attempts by complainant. Employer’s management techniques.
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What determines whether a dismissal is just or unjust?
In reaching their decisions, adjudicators apply well established principles of discipline in the work place to the circumstances of each case. If these principles have been followed by the employer in deciding to dismiss, then the adjudicator may fi nd that the dismissal was just. If, on the other hand, these principles have been violated to the disadvantage of the then employee, the dismissal would likely be found unjust. Sections II to V of this publication describe the principles involved.
NOTE THIS DOES NOT CONSTITUTE LEGAL ADVICE AND IS IS PROVIDED FOR INFORMATION ONLY.