Federally regulated employees are subject to the terms of the Canada Labour Code. The Canada Labour Code’s provisions for addressing alleged wrongful dismissal are unique.
Section 240(1) of the Canada Labour Code provides that a person who has been dismissed and considers the dismissal to be unjust, may make a complaint in writing, only if the employee has completed twelve consecutive months of continuous employment, and is not subject to the terms of a collective agreement. This complaint must be made within ninety days from the date on which the employee was dismissed.
Wrongful Dismissal Procedure
Upon being dismissed, a federally regulated employee has the right to request that the employer provide a written statement explaining the reasons for their dismissal. This statement should be requested within ninety days of the dismissal. Upon receiving the request, the employer must provide their written reasons within fifteen days.
If the employee believes the reasons are not sufficient to justify their dismissal, they may make a complaint to the Canada Labour Board. This complaint must include details regarding the employee and the date of the dismissal.
The Board will take time to review the complaint and consider the merits. If the Board believes the complaint is frivolous or may be better addressed in another forum, the complaint may be rejected.
If the Board accepts the complaint, they may order the appropriate remedy. The remedy awarded is typically compensation for lost wages or reinstatement. However, the Board has the discretion to fashion the remedy in a manner that it believes is fair. Accordingly, the Board may require the employer to do anything reasonably necessary to counteract the impact of the wrongful dismissal.
When is an Employee Wrongfully Dismissed?
Wrongful dismissal can occur in numerous ways. One common way is called “constructive dismissal”. Constructive dismissal occurs where the employer materially alters an important part of the employee’s work. For example, if the employer unilaterally alters the rate of pay, or the majority of the employee’s role without the employee’s consent, this may be a constructive dismissal.
An employee may not, however, be said to have been constructively dismissed if they agreed to the employer’s change. Accordingly, if the employee accepts the unilateral change – either expressly or impliedly – they may not later claim that they have been constructively dismissed.
If you are a federally regulated employee or employer and have questions about a dismissal or change in employee’s work duties, we encourage you to contact one of our lawyers. We would be happy to discuss your rights and obligations.