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.
Which companies are vulnerable to unjust dismissal complaints?
Only employees who are covered by the Canada Labour Code are eligible to claim unjust dismissal. That means that only employers in federally regulated industries are at risk of receiving unjust dismissal complaints. Those federally regulated industries, include, but are 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
What awards are granted 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 in wrongful dismissal cases, however, a Canada Labour Code adjudicator can order an employer to reinstate an unjustly dismissed employee - that is, to rehire the employee, and pay them wages for all the time spent off work. Pursuant to a recent decision of the Supreme Court of Canada, this is now the default remedy in cases of unjust dismissal. Employers in federally regulated industries should therefore exhibit a great deal of caution in terminating employees.
What defences do employers have to unjust dismissal complaints?
Luckily for employers, some employees are legally ineligible to claim unjust dismissal. Those include employees with less than 12 consecutive months of service, and those who exercise genuine supervisory or managerial functions (although this exception is narrowly construed).
Whether a dismissal is "unjust" can also depend upon the reasons for the termination. There are two main categories of defences of this type:
First, a Canada Labour Code adjudicator will decline to hear an unjust dismissal complaint from an employee who was terminated due to 'discontinuance of a function'; or 'shortage of work'.
- Second, an adjudicator may find that an employee's misconduct, disobedience or negligence gave the employer sufficient cause to terminate the employee.
All defences to unjust dismissal are viewed very skeptically and narrowly by adjudicators, since the Canada Labour Code is designed to protect and favour employees. We therefore strongly advise employers against terminating employees without expert legal advice from an experienced employment lawyer.
Can unjustly dismissed employees sue for wrongful dismissal?
Yes. Terminated employees can proceed with an unjust dismissal complaint, or a wrongful dismissal claim. This means, for instance, that an employee without any right to bring an unjust dismissal claim may still have the ability to sue your company for wrongful dismissal.
What can Hyde HR Law do for my company?
The employment lawyers at Hyde HR Law are experts at defending unjust dismissal complaints. We will determine the risks associated with terminating your employee and advise you on strategy to help reduce your company's liability. Should your company receive an unjust dismissal complaint, we will vigorously defend the business and protect its interests. We have successfully resolved countless unjust dismissal matters for our employer clients at all stages of the process. Contact Hyde HR Law today.