The Supreme Court of Canada has rendered the decision employment
experts have been waiting for in Wilson v. Atomic
Energy ofCanada, reinforcing the views of the
overwhelming majority of arbitrators and labour law scholars that
the purpose of Part III of the Canada Labour Code
("Code") was to ensure that non-unionized federal
employees would be entitled to protection from being dismissed
The Code applies to federally regulated employers primarily in
the banking, broadcasting, telecommunications, interprovincial
transportation and aeronautics sectors. In Part III of the Code,
the unjust dismissal provisions create a mechanism to protect
non-unionized, non-managerial employees with twelve (12)
consecutive months of service from being dismissed "without
cause" or for reasons other than lack of work or
discontinuance of a function.
Mr. Wilson was terminated "without cause" after four
and a half years of service and provided with six (6) months of
termination pay. Mr. Wilson filed a complaint claiming his
dismissal was unjust and a reprisal for having filed a complaint of
improper procurement practices on the part of his employer. The
employer responded to the complaint by confirming that the
termination was conducted on a "without cause" basis but
that it provided Mr. Wilson with a generous dismissal package,
rendering the dismissal a just one.
The Adjudicator assigned to the complaint allowed it, concluding
that an employer could not resort to severance payments, however
generous, to avoid a determination under the Code about whether the
dismissal was unjust. The employer applied to the Federal Court for
judicial review of the Adjudicator's award, which decision the
Federal Court found to be unreasonable. Mr. Wilson appealed to the
Federal Court of Appeal which agreed that there is nothing in the
Code precluding employers from dismissing non-unionized employees
on a "without cause" basis but reviewed the issue on the
standard of correctness.
Mr. Wilson appealed to the Supreme Court of Canada. The appeal
was granted by a majority applying the standard of review of
"reasonableness" and confirming that the
Adjudicator's decision was reasonable. The highest court
confirmed that "the purpose of the unjust dismissal provisions
was to offer a statutory alternative to the common law of
dismissals and to conceptually align the protections from unjust
dismissals for non-unionized federal employees with those available
to unionized employees." According to Justice Abella's
reasoning writing on behalf of the majority, the discretionary
remedies available to unjust dismissal complainants under the Code,
including reinstatement, are inconsistent with the right to dismiss
The decision was to be expected and is anchored on parliamentary
intention, statutory language, arbitral jurisprudence and labour
relations practice. The practical implication for employers is to
ensure that, other than reasons related to the discontinuance of a
function or lack of work, there is just cause to dismiss an
employee. This framework is identical to the Quebec Labour
Standards Act which offers similar protection to non-unionized
employees having two (2) consecutive years of service with the
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).