The Supreme Court of Canada granted leave to appeal in Wilson v Atomic
Energy of Canada Ltd. Federally regulated employers
hoping that this important decision from the Federal Court of
Appeal was the final word on the law of without cause dismissals of
non-union employees under the Canada Labour
Code will need to wait for the Supreme Court of Canada
to provide clarity.
Joseph Wilson worked for AECL for 4˝ years. In November
2009, AECL terminated his employment without cause and offered him
six months' pay as severance (which is well in excess of the
statutory minimum of 18 days he was entitled to under the
Canada Labour Code) in exchange for Wilson signing a
release of all claims against AECL. Wilson refused to sign the
release and filed a complaint under the Code. AECL
continued Wilson's salary and benefits for six months,
effectively paying him the severance it previously offered.
Wilson argued that federally-regulated, non-unionized employees
cannot be dismissed without cause. In his view, AECL could only
dismiss him if it had just cause or one of the specific statutory
exceptions were met (e.g., lack of work or a
discontinuance of his function). Otherwise, the dismissal was
necessarily unjust, and he is entitled to reinstatement and back
wages. In other words, Wilson effectively argued that the
Code provides him, like unionized employees, a "right
to a job". The adjudicator agreed.
But the Federal Court and Federal Court of
Appeal adopted a different view. In their view, the Code
should be interpreted such that an employer can dismiss a
federally-regulated, non-unionized employee without cause so long
as it provides sufficient notice and severance pay. If the notice
and severance pay are insufficient or the employer is
discriminating or reprising against the employee by dismissing him,
the employee can allege an unjust dismissal and make a complaint
under the Code (not unlike the common law regime at the
provincial level). If the adjudicator finds that the dismissal was
"unjust" (after considering the circumstances of the
dismissal and the amount of notice and severance pay), then it can
order reinstatement, back wages or other remedies.
The Federal Court of Appeal's decision seemed to put to rest
a long-simmering debate over this issue by concluding that a
federally-regulated, non-unionized employee can be dismissed
without cause. But, pending the Supreme Court of Canada's
decision (which likely won't be released until mid-2016), there
will continue to be some uncertainty for employers, employees and
adjudicators. In the meantime, federally-regulated employers may
decide to terminate employees without cause for reasons other than
lack of work or discontinuance of function, but should be mindful
of the risk that such a termination still be challenged under the
unjust dismissal provisions of the Code depending on how
the Supreme Court rules.
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.
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.
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.
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).