Unjust Dismissals for Federally Regulated Employees

What is unjust dismissal?

According to legislation under the Canada Labour Code (CLC) an unjust dismissal is a type of legal claim that strictly applies to non-unionized employees working for a federally regulated company in Canada who have been fired in a manner they feel to be unjust or arbitrary.

A federally regulated employee who has been dismissed for cause from their employment can seek the remedy of reinstatement, a solution not available to provincially regulated workers.

Employees covered by the unjust dismissal scheme can only be dismissed for cause. There is no unjust dismissal protection for employees in the case of layoffs or discontinuance of a job. If a federally regulated worker feels that they have been fired without sufficient reason, they may file this type of claim.

If you are let go without cause due to a layoff or your job being discontinued, your employer must provide you with a full severance package.

Watch the video below from the Employment Law Show, featuring employment lawyer Lior Samfiru, and read on to learn more about this type of legal claim.

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What is the difference between an Unjust Dismissal and Wrongful Dismissal?

The terms “wrongful” and “unjust” are often used synonymously. In employment law, there is a key difference between the two terms. In a wrongful dismissal you can claim severance pay (compensation for being fired) while an unjust dismissal allows you to seek reinstatement on top of a severance package.

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Which employees are federally regulated?

An employee is federally regulated if they work for a federally regulated company, in a federally regulated industry. These employees and workplaces are governed by the CLC. Industries that fall under this jurisdiction include:

• Banks
• Air transportation, including airlines and airports
• First Nations bank councils and federal crown corporations such as Canada Post
• Road transportation services, including trucks and buses that cross provincial or international borders
• Telephone, radio, and television broadcasting

For a list of specific Canadian businesses that fall into this category, see our resource on federally regulated companies.

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Who can file an unjust dismissal complaint?

A federally regulated employee can file an unjust dismissal if the following factors are met:

• Employee must have completed at least 12 months of continuous employment with the same employer.
• Employee can’t be in a managerial position.
• Employee is not covered by a collective bargaining agreement as part of a union.
• Employee has filed the complaint within 90 days of their dismissal.
• Employee hasn’t been fired due to lack of work or job discontinuation.

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How long do I have to file an unjust dismissal complaint?

You have 90 days from the date of your dismissal to file an unjust dismissal complaint. If you miss the 90-day deadline, you can’t proceed with the complaint unless there are exceptional circumstances justifying your failure to file on time.

It almost always makes sense to file an unjust dismissal complaint with Labour Canada before the 90-day deadline in order to keep the option of proceeding with an unjust dismissal hearing on the table.

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What happens if I file an unjust dismissal complaint?

If you file an unjust dismissal complaint, a mediator will be assigned to your case and will try to help settle the complaint between you and your employer.

Many complaints are resolved at this stage without the parties ever going to adjudication. If your matter is not settled at this point, your case will be heard by an adjudicator who will issue a decision. The adjudicator may order the reinstatement of the employee with lost wages; or order compensation for lost wages without reinstatement.

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Will I be reinstated to my job?

If a non-unionized federal employee has been dismissed from their workplace for a reason they feel to be unjust, they may be able to be reinstated to their previous role with their previous employer.

It is important to note that the reinstatement option is not guaranteed. The request to be reinstated may be declined by the adjudicator if the working relationship between the employee and employer has become unsalvageable. Despite this, it is reasonable for an employee to expect to be reinstated through this process.

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If I am not reinstated, how much severance should I expect?

If you are not reinstated to your job, you are owed a severance package.

As a federally regulated employee, you are uniquely protected from dismissal unless just cause exists. Therefore, you may be entitled to severance amounts that are higher than your provincially regulated counterparts.

If the “fixed term approach” is used to calculate your severance, it is assumed that you would have continued to work for your employer until your expected date of retirement. This is often subject to deductions for certain contingencies, such as if it seems likely that you would have been dismissed earlier, or would have left earlier for health reasons. Alternatively, a 1.25 months per year of service calculation is often used to calculate proper severance.

SEE ALSO
• Failure to properly discipline employee results in more severance: Federal courts
• Severance packages for provincially regulated workers

Our Severance Pay Calculator, found through the firm’s Pocket Employment Lawyer, can help you determine how much severance you may be owed.

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Do I have to pursue unjust dismissal if I am federally regulated?

As a federally regulated employee, you are entitled to pursue an unjust dismissal claim.  However, this does not mean that you are prohibited from pursuing a civil remedy against your employer. As a federally regulated employee, you can seek to file an unjust dismissal complaint through the CLC, or can file a civil action against your employer for wrongful dismissal and claim additional severance.

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Can I file an unjust dismissal and wrongful dismissal claim at the same time?

You can absolutely file both an unjust dismissal claim and a wrongful dismissal claim at the same time. Many fired employees in federally regulated industries will file both an unjust dismissal complaint and a lawsuit for wrongful dismissal after retaining an employment lawyer.

If a hearing is required to resolve your case, you have to choose to either:

• Proceed with the unjust dismissal hearing before an adjudicator.
• Pursue a wrongful dismissal claim.

In other words, while you can commence both an unjust dismissal complaint and a wrongful dismissal lawsuit after termination, you will eventually have to choose one over the other if a hearing is required.

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How Samfiru Tumarkin LLP can assist you

If you work in a federally regulated industry and you have been terminated from your employment, be sure to consult a lawyer at Samfiru Tumarkin LLP who will help you navigate both the Courts and the unjust dismissal regime.