Unjust Dismissal: the Canada Labour Code
The Canada Labour Code states, any person,
- 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 make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
An employer cannot contract out of subsection 240(2) “the unjust dismissal” clause of the Canada Labour Code. On the contrary, the Canada Labour Code states that the legislation sets minimum requirements which cannot be diminished by custom, contract, or arrangement (see subsection 168(1) of the Canada Labour Code).
While employers have long sought to avoid the overly restrictive incumberance on their management right to reorganize and dismiss –even a properly worded employment agreement will not quash an employees right to seek remedy for unjust dismissal.
Adjudicator Clarke in Christine Pare v. Corus Entertainment [2015] addressed this issue finding Ms. Pare (a radio personality) was unjustly dismissed when Corus reshuffled its broadcasters amongst its radio stations replacing her with another. While Ms. Pare signed an employment agreement allowing her employment to be terminated “without cause” this provision breached the Canada Labour Code to the extent that it fettered her right to claim unjust dismissal and pursue remedy.
Federally regulated Employers (including banks, couriers, and radio broadcasters) must establish there is cause, or some bona fide business reason for termination of employment such as budgetary restraint, lack of work, discontinuance of a function, or financial deficit. This is a high hurdle. If not made the complainant has a right to remedy.
Remedies possible under the unjust dismissal provisions of the Canada Labour Code are extensive - including reinstatement, payment of compensation from dismissal to reinstatement, as well as any other like thing that it is equitable to do to counteract any consequence of the dismissal. An adjudicator has the option of making an order under the remedy provisions.
While no employee is guaranteed permanent employment or a “job for life” the unjust dismissal provisions included in the Canada Labour Code were enacted by Parliament to provide dismissed employees with access to more extensive remedies than those available under the common law of wrongful dismissal and a quicker, more informal process than under the courts.
These possible remedies are a statutory benefit that an employer should expect to pay for in any reasonable settlement with a dismissed employee.
