The decision in Wilson v. Atomic Energy of Canada Limited,
released by the Federal Court of Appeal (the "FCA") on
January 22, 2015, marks the end of a long-standing tug of war. The
FCA held that non-unionized employees in the federal sector do not
have a "right to a job" and that dismissal from
employment on a without cause basis is not automatically an
"unjust dismissal" under the Canada Labour Code
Part III of the Code provides an adjudication process
for non-unionized employees who claim that they have been unjustly
dismissed from their employment. An adjudicator may order the
employer to provide compensation or other remedies to the employee,
Historically, some adjudicators have held that the Code
prohibits employers from dismissing an employee unless the employer
can demonstrate that there is "just cause" for dismissal.
For example, in cases where the employee engaged in severe
misconduct like theft or insubordination. For this reason, the
Code has been perceived to provide non-unionized employees
in the federal sector with rights and protections comparable to
those realized by unionized employees.
However, there have also been many decisions in which
adjudicators have held that a dismissal without cause does not
constitute an unjust dismissal under the Code. This
approach more closely aligns with the common law, under which an
employee dismissed without cause and provided with reasonable
notice is not wrongfully dismissed. The FCA's recent decision
confirms this latter interpretation of the Code.
Wilson had been employed by AECL for four and a half years when
he was dismissed without cause and provided with six months'
severance pay. He brought an unjust dismissal complaint against
AECL. The adjudicator held that an employee dismissed without cause
is, for that reason alone, unjustly dismissed and is entitled to a
remedy under the Code.
AECL brought an application for judicial review of the
adjudicator's decision to the Federal Court, which held that
the adjudicator's interpretation of the Code was
unreasonable. Wilson then appealed the decision of the Federal
Court to the FCA.
The FCA held that a dismissal without cause is not automatically
"unjust" under Part III of the Code because the
legislation does not explicitly oust the common law approach.
The FCA confirmed that a legislator (in this case, the Federal
government) will not be presumed to depart from common law unless
it has expressed "its intentions to do so with irresistible
clearness". The complaints mechanism under the Code
does not expressly prohibit an employer from dismissing employees
absent misconduct or other grounds constituting "just
cause". In fact, there are provisions of the Code
which expressly contemplate dismissal without cause and which
require that the employer must provide notice or compensation in
those circumstances. Overall, the Code fails to
oust the common law rule that an employee can be dismissed without
cause if provided with reasonable notice.
Implications for Federally-Regulated Employers
Federally-regulated employers no longer have to overcome the
"just cause" hurdle to be successful in defeating an
unjust dismissal complaint. Instead, the circumstances of the
dismissal and the amount of notice or severance pay received by the
employee will be factors in an adjudicator's analysis of
whether a dismissal is unjust.
The FCA's decision is consistent with recent findings that a
dismissal without cause in accordance with the express terms of an
employment contract is also not automatically an unjust dismissal.
An adjudicator will consider any factors which may suggest that the
dismissal was "unjust", such as whether the employee was
under duress when entering into the employment contract and the
circumstances surrounding the manner of dismissal.
The decision in Wilson v. Atomic Energy of Canada
Limited has put an end to the notion that the Code
provides non-unionized employees with the "right to a
job" and, in doing so, has resolved a long-standing divide in
the decisions of adjudicators appointed under the
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