What is Unjust Dismissal?December 19, 2018 7:47 am
Federally regulated employees are governed by the provisions of the Canada Labour Code (the “Code”). When a federally regulated employer (for example banks, airlines, telephone companies, etc.) dismisses an employee, section 240(1) of the Code permits the employee to make a written complaint to an inspector if the employee feels that the dismissal is unjust, provided:
- the employee has completed 12 consecutive months of employment;
- is not subject to a collective agreement; and
- is not excluded due to managerial status.
Making a complaint pursuant to Section 240(1) of the Code does not preclude an employee from pursuing a wrongful dismissal claim in the courts.
The concept of unjust dismissal under the Code is different from, and broader than wrongful dismissal.
Under the Code, a person can make a written complaint regardless of whether he or she is paid severance or given notice in lieu. Consequently, a dismissal can still be “unjust”, even if an employer has given the dismissed employee notice or pay in lieu of notice. This is because the underlying purpose of unjust dismissal is to protect the personal dignity and autonomy of the individual employee in termination situations.
in order for a termination to be “just”, an employer’s decision must be:
- made in good faith;
- made in a non-arbitrary and non-discriminatory manner; and
- made in a procedurally fair manner
The unjust dismissal provision does not apply in situations where an employee is laid off as a result of a shortage of work or a discontinuance of the job function. Nevertheless, a dismissed employee can challenge the elimination of the position itself i.e., that the real reason was to get rid of the employee.
The remedies available to an adjudicator who concludes that a dismissal is unjust includes the authority to reinstate an employee. Other remedies include ordering the employer to pay damages or making any other equitable order that will remedy the unjust dismissal and protect the personal dignity of the employee.