The Supreme Court of Canada recently overturned a controversial
decision of the Federal Court of Appeal (Koskie Minsky LLP
Employment Blog February 9, 2015).
Specifically, the Federal Court of Appeal held that "Unjust
Dismissal" provisions pursuant to sections 240 to 246 of the
Canada Labour Code, R.S.C. 1985, c. L-2 (the
"Code") only provided non-unionized federally
regulated employees the right to challenge a dismissal without
cause where reasonable notice had not been provided, similar to the
common law standard. Accordingly, a dismissal without just cause
was found not to be "unjust" per se.
The majority of the Supreme Court of Canada disagreed, stating
that the "Unjust Dismissal" provisions (sections 240-246
of the Code) consist of "expansive protections like
those available to employees covered by a collective
agreement" in respect of non-unionized federally regulated
employees who have completed 12 consecutive months of employment;
those protections including being the right not to be unjustly
The Supreme Court of Canada held that unless an employee has
been terminated for "just cause", whether or not the
employee has been provided with statutory notice and severance pay
under the Code, reasonable notice at common law (or pay in
lieu) or pursuant to contract, the employee still has the right
ask the employer for a written
statement setting out the reason for dismissal, which must be
provided within 15 days; and
apply under the Unjust Dismissal
provisions of the Code for an inspector to determine
whether the dismissal was unjust, and seek an appropriate remedy,
including reinstatement or compensation.
The only exceptions are where the employee has been laid off for
lack of work, the discontinuance of a function, or if the
employee's position is managerial.
The Supreme Court of Canada decision reinstates the longstanding
interpretation by an overwhelming majority of arbitrators and
labour law scholars alike, and the vast majority of legal counsel,
that the Unjust Dismissal provisions prevent the termination of
covered employees other than for "just cause" or a
termination due to lack of work or the discontinuance of a
The Supreme Court of Canada decision will have a huge impact
upon a vast number of employees; those within the Federal
government, banks, airlines and other federally regulated
businesses, and renews the right of such employees to file an
Unjust Dismissal complaint pursuant to the Code to seek
reinstatement and other equitable relief rather than, or in
addition to, monetary compensation. The decision will be a
significant point of leverage in negotiations relating to the
quantum of reasonable notice to be provided by an employer to avoid
the prospect of reinstatement.
Wilson v. Atomic Energy of Canada
Ltd., 2016 SCC 29
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