Expertise

Unjust Dismissal

The term "unjust dismissal" is often used interchangeably with the term "wrongful dismissal", but the two concepts are actually quite distinct.

 

At common law, a non-unionized employee may be dismissed without reasons from their employment provided they are given reasonable notice or pay in lieu of notice. Where an employer fails to provide an employee with adequate notice or pay in lieu of notice, the employee is said to have been "wrongfully dismissed" from their employment. 

An "unjust dismissal", on the other hand, is a term most often associated with labour arbitration in a unionized context and/or with the framework established under Division XIV of the Canada Labour Code for federally regulated employees/employers. The unjust dismissal framework under the Canada Labour Code establishes expansive protections for non-unionized federal workers much like those available to unionized employees covered by a collective agreement. Those protections effectively prohibit a federal employer from terminating an employee's employment on a "without cause" basis.

When a federally regulated employer does terminate an employee "without cause", such employee may pursue either a civil claim for the common law remedy of reasonable notice, or they may bring an unjust dismissal complaint in accordance with the provisions of the Canada Labour Code. In deciding which avenue to pursue, some considerations include:

  • Remedies - The unjust dismissal framework under the Canada Labour Code provides for expansive remedies, including remedies which even a court may not be able to provide such as reinstatement of employment.

  • Time Limits - The Canada Labour Code provides a very strict time limitation on when a claim can be brought. If the unjust dismissal complaint is filed after the 90 day time limit, then it may be statute barred.

  • Reason for Dismissal - The Canada Labour Code limits an employer's right to terminate an employee for any reason. Accordingly, depending on the reasons for the termination, an employee may wish to pursue an unjust dismissal complaint because it is easier to prove their case in that process than in court.

 

Navigating the unjust dismissal provisions of the Canada Labour Code can be difficult, but if you require assistance in this regard, or with bringing an unjust dismissal complaint, we would be pleased to speak with you and ask that you please contact us today.