It has long been a principle of the common law that an employer may dismiss an employee without cause so long as the employer provides the employee with reasonable notice or pay-in-lieu of notice. For federally regulated employers this ability to dismiss employees in this manner is now restricted as a result of the recent decision of the Supreme Court of Canada in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.
Over the last 38 years certain adjudicators have held that access to the remedial provisions contained in sections 240 through 245 of the Canada Labour Code (R.S.C., 1985, c. L-2) were essentially unavailable to an employee where the employer provided reasonable notice or pay-in-lieu of notice. This is no longer the case and employers should be aware of the following when terminating an employee without cause:
- any employee who has completed twelve consecutive months of continuous employment by an employer, and who is not a member of a group of employees subject to a collective agreement may file a complaint with an inspector alleging unjust dismissal;
- the inspector or the dismissed employee may make a request in writing to the employer requiring it to provide a written statement giving the reasons for the dismissal. The employer must respond within 15 days from the date of the request;
- an adjudicator may be appointed by the Minister of Labour to resolve the complaint;
- the adjudicator may not consider a complaint made by an employee where that person has been laid off because of lack of work or because of the discontinuance of a function;
- Where the adjudicator determines that an employee has been unjustly terminated there are several remedies available to him or her under the Canada Labour Code which include:
∼ pay the employee 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 employee;
∼ reinstate the employee in his or her employ; and
∼ 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.
Federally regulated employers that want to terminate an employee without cause, for any reason other than a lack of work or discontinuance of function, by providing reasonable notice, or pay-in-lieu of notice, must be careful when doing so. An employer in this circumstance must ensure that it is not offside the unjust dismissal provisions contained in the Canada Labour Code, or it may find that it is subject to the broad range of remedial provisions available to adjudicators enumerated above. Given the increased complexity of the federal employment law provisions, no termination of an employee in a federally regulated business should be made without consulting legal counsel prior to the dismissal.
Jamieson Collins is a Canadian lawyer and may be reached at +1 647 328-5112 or via email at jdc@jcollins-law.com.
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