Unjust Dismissal Under Canada Labour Code

The Process

The onus of proof to show the requisite components of the Code to allow for a complaint, that is, completion of 12 consecutive months, and a dismissal, rests upon the complainant. 1

Once jurisdiction has been established, the employer then has the onus of proving just cause, by objective and reliable evidence. 2

Where just cause has been raised, the employer typically makes submissions first. 3 This is so as the employer has the onus of proof. The same process will apply where the employer makes a similarly affirmative submission based on discontinuance of a function or contests jurisdiction for other reasons.

It may be an advantage to the employee for the employer to proceed first in a just cause allegation. This is similar to labour arbitration cases which provides the same format. The case may or may not be bifurcated, that is, divided into two distinct stages, the first for liability and the second for a damage assessment where the employer is not able to show just cause.

There is not the same, cause or no cause, issue as is the case in common law termination cases as the adjudicator has discretion to find some degree of misgiving, yet which is not sufficient to allow for cause for termination. In such cases, there may be a lesser penalty provided such as a period of suspension which would reduce the claim for lost income.

The remedy, in more general terms, is reviewed here.