Can fired employees be reinstated? In most cases, no. The employment lawyer’s mantra is that any employer can fire any employee at any time for any reason.  For employees, it means that a termination cannot be undone.

As with all rules, however, there are exceptions. While a court will never reinstate you, some specialized tribunals can and will. The Canadian government has passed laws that empower these tribunals to reinstate employees. In Ontario, for instance, the Human Rights Tribunal and the Labour Relations Board both have the power to order reinstatement.

Reinstatement is a tall order. It is an “extraordinary remedy” that depends on an adjudicator’s discretion.  But it acts as a major deterrent to misbehaving employees; gives employees a chance to swing for the fences; and provides powerful leverage to employees to negotiate a severance package.

With that in mind, when can a terminated employee seek reinstatement?

1. If you are a federally-regulated employee

Federally-regulated employees are most likely to be reinstated. If you work in a federally-regulated industry, like telecommunications, banks, or railways, you are subject to the Canada Labour Code (the CLC). The CLC restricts employers from firing employees except in very specific circumstances. Otherwise, it’s an “unjust dismissal” for which the Canada Industrial Relations Board can order reinstatement.

Most unjustly dismissed employees file a complaint asking for reinstatement with back pay. Although reinstatement in these cases is rare, but always a distinct possibility — providing invaluable leverage for you to negotiate a settlement.

2. If your employer violated the Human Rights Code.

All Canadian jurisdictions have human rights legislation. These laws protect employees from discrimination on the basis of age, race, religion, gender, sexual orientation, and other protected grounds. If any of those grounds “tainted” your employer’s decision to terminate you, the Human Rights Tribunal can order that you be reinstated. That tribunal has broad discretion to award relief, which might also include lost wages, medical expenses, and general damages for discrimination.

3. If your employer fired you for a workplace complaint

In Ontario, both the Occupational Health and Safety Act and the Employment Standards Act contain anti-reprisal laws. They protect employees who are exercising or enforcing their workplace rights from retaliation. The effect is to give you the power to enforce your own workplace rights against your employer. For instance, your employer cannot fire you for refusing unsafe work. If they do, you could apply to the Labour Relations Board for reinstatement, back pay, and general damages.

If you’ve been fired and want to apply for reinstatement, call Nick today for a consultation.