What is unjust dismissal?
Unjust dismissal, not to be confused with wrongful dismissal, is when an employee is terminated without proper cause under the Canada Labour Code.
Can all employees in Canada claim unjust dismissal?
No. Only federally regulated employees who are covered by the Canada Labour Code are eligible to claim unjust dismissal. The Canada Labour Code applies to employees in industries governed by Canadian federal law, including, but not limited to:
Rail, Road, Water and Air Transportation
Telecommunications, Radio and Television Broadcasting
Canals, Tunnels and Bridges
Shipping and Shipping Services
Some First Nations activities
Who can claim unjust dismissal?
Not all employees who are covered by the Canada Labour Code can make a claim. Some employees are exempt from the unjust dismissal provisions of the Code, including:
Employees who are covered by a collective agreement
Employees with less than 12 consecutive months of service
Employees who exercise managerial or supervisory functions
Employees who fail to file an unjust dismissal claim within 90 days of the dismissal
- Employees who are terminated due to a genuine 'discontinuance of a function'; or 'lack of work'
Employees with another statutory procedure for redress, such as federal public servants, who can use the grievance procedures under the Federal Public Service Labour Relations Act
When is a dismissal not unjust?
Any dismissal under the Canada Labour Code is considered 'unjust' unless your employer can prove that it had sufficient cause to terminate you. Most terminations for cause arise from an employee's misconduct, disobedience, neglect of duty, dishonesty, or discrimination/harassment of others in the workplace. It is generally very difficult for your employer to prove it had cause to terminate your employment.
For more information on what constitutes a 'just' dismissal under the Canada Labour Code, see our page on just cause terminations.
What remedies are available to unjustly dismissed employees?
Similar to provincially regulated employees who have been wrongfully dismissed, federally regulated employees can receive a monetary award for unjust dismissal. The monetary award usually represents compensation for lost wages as a result of the dismissal.
Unlike wrongful dismissal, however, you could also obtain an order reinstating you in the job that you were dismissed from. Employers are generally very opposed to the idea of reinstating an employee who they have dismissed. That makes the threat of reinstatement an excellent bargaining tool for employment lawyers negotiating severance packages on behalf of their clients who have been unjustly dismissed.
I believe I've been unjustly dismissed. What should I do next?
Legal representation is critical. If you have been unjustly dismissed, you must act quickly. Unjust dismissal complaints must be filed within 90 days of the dismissal. However, filing a complaint will only begin the unjust dismissal process. We recommend that anyone considering an unjust dismissal claim seek legal advice as soon as they have been dismissed, in order to determine the appropriate strategy and meet the prescribed deadlines.
What can Hyde HR Law do for me?
The employment lawyers at Hyde HR Law are unjust dismissal experts. We can determine whether you are eligible to file an unjust dismissal claim, negotiate a severance agreement with your employer using our knowledge and expertise, or commence unjust dismissal proceedings on your behalf if necessary. We have successfully resolved countless unjust dismissal matters for our employee clients. Don't wait until it's too late! Contact Hyde HR Law today.