Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Labour and Employment
Employment tribunals
How are employment-related complaints dealt with?

Answer ... The nature of the claim and the circumstances of the individual’s employment determine the manner in which claims can be processed. Various courts and tribunals enjoy concurrent jurisdiction over different types of employment-related disputes.

Wrongful or unjust dismissal complaints can be made in court if the claimant is employed pursuant to an individual contract of employment. Non-unionised employees must generally bring human rights complaints before dedicated human rights tribunals. However, there is an exception for wrongful dismissal actions that concern allegations of termination for discriminatory reasons, which may proceed before the courts.

On the other hand, employees represented by a trade union and employed pursuant to a collective agreement are required to utilise the local grievance and arbitration procedure for all claims arising out of their employment and do not generally have recourse to the courts.

Administrative tribunals, like labour relations boards and human rights tribunals, have jurisdiction over complaints of particular statutory violations such as discriminatory treatment, harassment, reprisal, unfair labour practices and contraventions of minimum employment standards. In the unionised employment context, many of these claims can and in some cases must be referred to grievance arbitration, since labour arbitrators have exclusive jurisdiction to interpret and apply various employment-related statutes in addition to specific collective agreement provisions.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
What are the procedures and timeframes for employment-related tribunals actions?

Answer ... Court and tribunal processes and timeframes vary depending on the jurisdiction, the specific rules of procedure and other factors. Generally speaking, a claim is commenced once a statement of claim or complaint is filed with the court or tribunal and the parties concerned. The defendant then has an opportunity to file written submissions in response within a prescribed timeline, followed in some cases by a further complainants’ reply.

Some jurisdictions make mediation and alternative dispute resolution procedures mandatory before disputes can proceed to a full oral hearing. The parties are also required to make disclosure of relevant documents well in advance of any hearing.

The rules of natural justice apply to court and tribunal proceedings, and as such, concerned parties have the right to be heard and to test the evidence against them, including through witness examinations.

In the court system, the summary judgment procedure has been recognised as an appropriate procedure for the adjudication or wrongful dismissal claims. Summary judgment entails the full or partial disposition of a claim on a preliminary motion, therefore avoiding the need for a full trial (or a full trial of all matters in dispute). Summary judgment motions can often be scheduled within one year of the claim being filed, whereas proceeding to a full trial often takes longer.

The procedures for grievance arbitration in the unionised employment context are generally less formal and costly than court proceedings, though not always more expeditious. Written pleadings are not generally required for grievance arbitration under a collective agreement, and rules of evidence and other legal doctrines may be applied in a more flexible or relaxed manner than would be the case in court.

For more information about this answer please contact: Tim Lawson from McCarthy Tétrault LLP
Labour and Employment