Non-Unionized Federal Workers Protected from Arbitrary Dismissal

by Lumi Pungea

Friday, July 29th, 2016 at 4:01 am

From time to time an employment law decision comes along that makes it beyond the specialized legal blogs and into the mainstream news channels. Take Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29. It was presented on evening news programs and our clients call us asking how the Supreme Court decision affects their case.

The rule in the typical wrongful dismissal is that an employee can be fired at any time for any reason, however arbitrary, as long as the employer provides adequate notice or pay in lieu thereof. Not being the “right fit” or even not being provided with a reason at all leaves a departing employee with no recourse as long as the notice of termination is adequate. In contrast, Wilson stands for the proposition that non-unionized workers employed by banks, airline companies, telecoms, and other federally regulated enterprises can only be dismissed for “just cause” and no amount of notice can preclude the employer from having to justify the decision to dismiss someone.

Joseph Wilson worked as an administrator for his employer for several years and had a clean disciplinary record. He nevertheless lost his job after filing a complaint of improper procurement practices on the part of his employer. The dismissal was on a “without-cause” basis and the employer provided Mr. Wilson with pay in lieu of notice. The Supreme Court ruled that the Canada Labour Code protects non-unionized federal employees from “unjust dismissals” and that Mr. Wilson’s dismissal was in fact a reprisal in the guise of a “without-cause” termination. In other words, not even a relatively generous severance package could make the dismissal a just one and as a result employees like Mr. Wilson are able to apply for reinstatement.

Of note, although Wilson confirms that non-unionized federal workers are protected from arbitrary dismissals, an employee has no recourse if he or she was laid off because of lack of work or the discontinuance of a function. Therefore, generic reasons such as a “reorganization” or “change in the operational needs” of a business trigger an employee’s termination entitlements but preclude an application for reinstatement.


What Does Wilson Mean for Employers?

Federally regulated employers need to provide reasons for dismissing their employees and should be able to connect their decision to the employee’s record or to legitimate business reasons. In the case of misconduct or incompetence employers need to undertake progressive discipline and provide employees with meaningful opportunities to improve their act before dismissing them. While it remains to be seen how Wilson is applied to other cases, dismissals for not being the “right fit” are more likely to be challenged by employees. Contact us for professional guidance and practical advice from lawyers who specialize in this area of law.


What Does Wilson Mean for Employees?

If you lose your job and suspect that the employer’s reason for the dismissal lacks legitimacy, you may have recourse. Potential reinstatement is reserved for non-unionized federal employees who can prove that they were dismissed arbitrarily but the requirement for adequate notice has a general application. Our employment lawyers are known for their clear and pragmatic approach so contact us if you need representation in your dealings with your employer.


Lumi Pungea is a lawyer with Samfiru Tumarkin LLP’s Labour and Employment practice group. She provides legal advice and representation to individuals, businesses and non-profit organizations in a wide range of labour and employment issues.

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