Unjust Dismissal

Sometimes wrongful dismissal and unjust dismissal are used interchangeably. However, they are two different things. Unjust dismissal strictly applies to non-unionized federally regulated employees.

It is crucial you understand the differences between the two and when a dismissal counts as unjust.

This guide will review what unjust dismissal is in the Canadian context, the difference between unjust dismissal and wrongful dismissal, and tips you can use to protect yourself from unjust dismissal complaints.

What is Unjust Dismissal?

Under the Canada Labour Code (“CLC”), unjust dismissal is not defined, however, it is a complaint process for non-unionized federal employees who feel that their dismissal was unjust.

Under Section 240 of the CLC, an employee may file an unjust dismissal complaint if the employee:

1. Has completed 12 months of continuous employment.
2. Is not subject to a collective agreement.
3. Is not a manager.
4. Files the unjust dismissal complaint within 90 days of the dismissal.
5. Has not been fired due to lack of work or job discontinuation.

Additionally, if an employee believes they were unjustly dismissed, the employee can also request from the employer written reasons for the dismissal within 15 days.

An employee who works in a non-unionized federal workplace may file an unjust dismissal complaint. An unjust dismissal complaint is not available for provincially regulated employees. Some examples of federally regulated workplaces are:

• Bank Institutes.
• Transport companies, for examples railways.
• Television companies.
• Broadcasting companies.

Unjust dismissal also does not apply to federally regulated unionized employees. Unionized employees would have to seek direction from their union under their collective bargaining agreement. Please note BrightHR Canada or Peninsula don’t advise on unionized workplaces.

Unjust Dismissal vs. Wrongful Dismissal

As mentioned, unjust dismissal refers to a legal claim strictly available to non-unionized federal employees who believe their dismissal was unfair. Wrongful dismissal, on the other hand, refers to a claim for additional notice upon termination. Wrongful dismissal claims can only be made by provincially regulated employees.

Additionally, claims for unjust dismissal and wrongful dismissal have different remedies. If an employee files an unjust dismissal claim and is successful, the employee may be entitled to the amount of wages earned had the employee not been dismissed.

The dismissed employee may also be reinstated in the same position prior to being dismissed. In some cases, employees may choose not to be reinstated.

Although not stated under the CLC, non-unionized federal employees can make additional claims under an unjust dismissal complaint an a such as:

• Loss of group benefits.
• Employee shared benefits.
• Vacation pay.

In wrongful dismissal cases, employees cannot be awarded reinstatement with backpay to the date they were dismissed. Employees can only claim additional notice of termination from the date they were dismissed, along with claims for any outstanding vacation pay, bonus payments, benefits payments, etc.

Provincially regulated employees looking to claim wrongful dismissal must do so by commencing a formal legal action with the applicable court.

Which provincial court a wrongful dismissal claim is filed at will depend on the monetary value of the claim.

Is a Constructive Dismissal an Unjust Dismissal?

The courts have established that a non-unionized federal employee may file an unjust dismissal complaint if they have been constructively dismissed.

A constructive dismissal – commonly known as a forced resignation – may occur when an employer unilaterally breaches or changes a fundamental term of the employment contract. When an employee believes that the employer chooses to no longer be bound by the employment contract, the employee may feel that they have no other option but to resign (forced resignation).

The CLC recognizes that a constructively dismissed employee may file an unjust dismissal complaint.

However, the employee must be able to prove that the change to their employment was enough for them to resign.

Unjust Dismissal Complaint Process

For an employee to file an unjust dismissal complaint, the following process must be followed:

• The employee will file an “Unjust Dismissal Form” and a copy the termination letter with Employment Social Development Canada.
• An inspector will review the complain to verify that it meets the criteria under the CLC.
• The inspector will provide a copy of the complain to the employer, and request any other information needed.
• The inspector will arrange a settlement conference with the employer, employee, and themselves.
• If no resolution found, the parties can request an adjudicator to determine whether the dismissal was unjust.
• Once the decision is made, it cannot be appealed. Although a complaint can be made to the Federal Court of Canada.

What Employers Need to Know

Non-unionized federal employees can file complaints for unjust dismissal if they believe the employer has no justification to terminate the employment relationship.

Here are steps you as a federal employer should take to protect yourself from unjust dismissal complaints.

Evaluating Employee Performance

Employers should review employee performance on a regular basis throughout the employment relationship.

It is also good to conduct employee performance reviews when the employee is meeting company expectations. When conducting employee performance reviews, employers should be aware of any human rights obligations required under the Canadian Human Rights Act.

Record Keeping

Employers should keep a detailed record for each employee. For incidents of lateness and tardiness, employers should keep a record of each occurrence of the employee being late for work, including the day, time, and reason for being late.

All employee information should be stored in an employee file.

The Reason for Dismissing an Employee

Prior to dismissing a non-unionized federal employee, employers should evaluate the reason for terminating the employee.

If the termination is due to lack of work or discontinuance of a function, the employer must provide notice and severance pay under the CLC.

Actively Engage in the Complaint Process

If in the event an employee commences an unjust dismissal complaint, the employer should actively engage in the process and respond to inquiries either by the employee or by an inspector.

By actively engaging in the complaint process, you may be able to resolve the complaint without having the complaint referred to an adjudicator. It is also the employer’s obligation under the CLC to respond to unjust dismissal complaints.

If employers do not respond to unjust dismissal complaints, they risk a decision being made without them and in some cases, fines by Employment Social Development Canada.

Get Advice on How to Handle Unjust Dismissal Claims

It is important for federal employers to understand what an unjust dismissal is and how to respond to an employee filing an unjust dismissal complaint. Employers are also reminded to keep a detailed record of each employee to support a dismissal.

The best way to maintain employee records with ease is to use a smart HR software, such as Peninsula’s BrightHR. With BrightHR, you can record all employee records in a secure, unlimited cloud-based storage space. You can even update the records on your phone using the BrightHR mobile app.

If you need assistance with handling an unjust dismissal claim, or further information on how to terminate a non-unionized federal employee, our BrightAdvice service allows you to receive quality advice on any employment issues you may have.

Contact us on 18882204924 or book a demo today.