Canada Labour Code (the "Code"), which applies to
federally regulated employers, provides that non-union employees
with 12 months or more service can bring complaints alleging that
the termination of their employment was "unjust." An
adjudicator, appointed under the Code, can award a range of
remedies, if they find the termination was unjust, including
reinstatement of the employee.
Prior to Atomic Energy the "unjust dismissal"
provisions in the Code were commonly interpreted by adjudicators to
mean that non-unionized employees in the federal jurisdiction could
only be dismissed for just cause similar to the protection afforded
to unionized employees. In Atomic Energy, the Court stated
that this interpretation of the "unjust dismissal"
provisions was "unsupported by authority and logic" and
rejected the notion that the "unjust dismissal"
provisions were tantamount to a grievance procedure in a union
contract. Rather than an automatic presumption that without cause
dismissals are unjust, "an adjudicator must examine the
circumstances of the particular case to see whether the dismissal
The Court elected not to comment in detail on the meaning of
"unjust" but rather left that to be decided by
adjudicators in subsequent cases. However, the Court did provide
some guidance in that it expressed approval of a previous case
where a termination was held not to be "unjust." In that
case, the employee was provided with a severance payment in
accordance with the terms of an employment contract that was freely
negotiated between the parties before employment commenced.
This a very positive legal development for employers since it
effectively does away with the presumption that federally regulated
employers cannot dismiss employees without cause. To ensure a
termination will not be found to be "unjust" you may wish
to consider negotiating notice and severance provisions in written
employment contracts prior to the start of the employment
relationship and ensuring that these provisions exceed the
statutory minimum notice and severance set out in the
Code. When dismissing existing employees without
employment contracts, you may wish to provide employees with notice
and severance in excess of their statutory entitlements under the
Code and consistent with what the employee would be
entitled to at common law (in exchange for a release). Of course,
in all cases it is important to ensure that employees are treated
with dignity and respect throughout the termination process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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