The Statute

The Canada Labour Code sets the qualifiers which are required for an Unjust Dismissal complaint by s. 240(1) of the Canada Labour Code.

This requires, presuming federal jurisdiction:

1. An employment relationship;
2. An act of termination;
3. Employment which has been at least consecutive 12 months; and
4. The person is not a union member;
5. 167(3) states that Division XIV does not apply to employees who are managers.

There is a time limit for the making of the complaint, which is set at 90 days by S. 240(2). This may be extended if the employee had made a complaint within the time period to the wrong entity. S. 240(3)a. There is also contemplated a regulation which may further detail the reasons for the extension, but none have been passed.

The Code was amended as of July 29, 2019. All complaints commenced after this date come before the Canadian Industrial Review Board. Previously, independent adjudicators had been used to conduct the hearings.

The person dismissed, or the CIRB, may request from the employer the reasons for dismissal, which must be given within 15 days by S. 241(1).

There is a mandatory obligation upon the CIRB to try to settle the complaint, failing which either party may request a hearing, which must be allowed, subject to the exceptions below. S. 241(3) The purpose of this process is not only to attempt to settle the complaint, but also to consider whether the complaint may be frivolous or vexatious or clearly without merit and to prevent a hearing in such examples. ¹

Once the Board has received the complaint, a hearing is not compelled. The Board must still dismiss the complaint where:

1. The complaint is not within its jurisdiction;
2. The Complaint is frivolous or vexatious;
3. The complaint has been settled in writing;
4. There are other means available to the employee to resolve the subject matter of the complaint that the Board believes should be pursued;
5. The subject matter has been previously considered before another judicial or administrative body;
6. The Board has previously suspended the complaint.

There is no jurisdiction given to the Board where the employee has been “laid off because of lack or work or because the discontinuance of a function” or there exists a procedure for redress under another part of the Code or any other federal act. S.241.2 (3.1)

The remedy powers of the Board are based on a finding of unjust dismissal. They are:

1. It may order the employer to pay compensation which would otherwise have been paid, but for the dismissal;
2. Reinstate the employee;
3. Do any other “like thing that is equitable” to counter the consequence of the dismissal.

Notably the power to provide a remedy is premised on a finding of unjust dismissal. Should the Board see the dismissal as just, it is powerless, even to order costs against the employee. S. 242(4)

The Code proposes to deny the right of review, but this provision is routinely seen as unenforceable. A review will be allowed by judicial review principles.