Federally regulated employers take note. The Federal Court of
Appeal has recently confirmed that without cause dismissals are not
automatically deemed to be "unjust" under the provisions
of the Canada Labour Code (the "Code").
For decades, adjudicators have been at odds with one another
regarding the question of whether the Code permits dismissals on a
without cause basis. As a matter of background, the Code applies
only to federally regulated employers such as banks, railways and
telecoms. After years of uncertainty in this area, the Federal
Court of Appeal recently decided to end the discord and
definitively determine the legal point.
In the case of Wilson v. Atomic Energy of Canada
Limited, Mr. Wilson was employed for 4.5 years before being
terminated on a without cause basis and offered a common law
package equal to about 6 months of pay. Mr. Wilson chose not to
sign a release in exchange for the offer and instead filed a
complaint under the Code which alleged that he had been unjustly
After both an adjudication and a Federal Court hearing, the
matter proceeded to the Federal Court of Appeal, which found that a
dismissal without cause is not automatically "unjust"
under the Code and that adjudicators must examine the circumstances
of each particular case in order to decide whether or not a
dismissal is unjust. In its analysis, the court determined that
Part III of the Code (which contains exceptional remedies such as
reinstatement of employment) is merely intended to offer employees
more remedies than exist under the common law, but only if the
dismissal is unjust. The extra remedies granted under Part III do
not, however, mean that all without cause dismissals under the Code
are automatically unjust.
As a result, federally regulated employees who are terminated
without cause must prove that they have been terminated unjustly if
they want that conclusion to be drawn. In practical terms, this
means that where there is no finding of unjust dismissal, a
federally regulated employee can be terminated without cause and
simply provided with a notice or severance package. In order to
gain the benefit of Code remedies which do not exist under the
common law, such as the right to reinstatement, the employee must
go the extra step and establish that the without cause termination
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
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. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Join our partners Karen Martin and Ryan Chalmers at the Pacific Business & Law Institute’s program, where they will be presenting a session titled "Procurement: Compliance with AIT, NWPTA, TILMA, NAFTA, TPP, CETA and the Statutes." This forum assembles leading government advisors to provide insights on key issues in local government today.
The arbitrator's decision covered a number of issues including whether the termination was appropriate and whether the City had breached the grievor's human rights. The following, however, will focus on the privacy issue raised.
In my December 15, 2016 article, Federal Government's Cannabis Report: What does it mean for employers?, I noted the Report's1 suggestion that there was a lack of research to reliably determine when individuals are impaired by cannabis.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).