It is a common legal principle that, any employee may be fired at any time for any reason, as long as the employer gives reasonable notice. In many cases, it is true that once your job is lost, no court will give it back to you. However, the Labour Relations Board, the Human Rights Tribunal, or adjudicators appointed under the Canada Labour Code have the power to reinstate a dismissed employee to their former position.
Reinstatement is an 'extraordinary remedy' that is only awarded if, in the adjudicator's opinion, the employment relationship is still viable. But if you do win the case, you could get your job back, and you will usually receive 'back pay' for the entire time you were off work.
Many employers are fearful at the prospect of reinstatement, so this provides powerful leverage for the employee to negotiate a severance package.
There are specific circumstances when an employee may seek reinstatement.
Federally Regulated Employees: Employees of federally regulated industries, such as telecommunications, banks, or railways, are governed by the Canada Labour Code ('CLC'). Under the CLC, non-managerial employees who are fired may seek reinstatement in most circumstances. If you qualify, you can bring a complaint before an adjudicator and ask to be reinstated with back pay. Or you may simply be awarded lost wages, which is similar to severance pay. (This does not typically apply to unionized employees who would grieve under an applicable collective agreement.)
Human Rights Code Violations: Human rights legislation protects workers from discrimination based on age, race, religion, gender, sexual orientation, or disability. So if the decision to fire you was even slightly motivated by discrimination, you can apply to the Human Rights Tribunal for reinstatement, lost wages, and general damages for injury to your dignity, feelings, and self-respect.
Reprisals: If you were fired in retaliation for exercising your rights under the Occupational Health and Safety Act or the Employment Standards Act, you can apply to the Labour Relations Board for reinstatement, back pay and general damages. These acts contain anti-reprisal provisions, which prohibit employers from terminating employees for having exercised their rights. For example, if you were fired for insisting on being paid for overtime work, this may be a violation of your rights.
If any of the above situations apply to you, please contact us to schedule a consultation.