As a result of amendments to Part III of the Canada Labour Code (the "Code"), which came into effect in 2019, the Canada Industrial Relations Board now hears unjust dismissal complaints which were previously heard by individual adjudicators. See our article here on these amendments. In two recent decisions, the Board refused to hear unjust dismissal complaints under Part III of the Canada Labour Code (the "Code") where another procedure for redress existed.
In Kommepalli v. BMO Financial Group (2020 CIRB 938), the employee filed a complaint with the Board alleging that she was unjustly dismissed from her employment. She also filed a reprisal complaint with the Board alleging that her dismissal was a reprisal for filing a harassment complaint. Both complaints relied on the same set of core facts.
In Brown v. Warren Gibson Limited (2020 CIRB 948), the employee filed an unjust dismissal complaint with the Board and also filed a complaint with the Canadian Human Rights Commission claiming discrimination in contravention of the Canadian Human Rights Act (the "Act"). At the core of both complaints were the same chronology of events and the same allegations.
What did the Board Say?
Section 242(3.1)(b) of the Code says that no unjust dismissal complaint shall be considered by the Board if a procedure for redress has been provided under Part I or Part II of the Code or under any other Act of Parliament.
The Board said that the applicable test to decide whether a complaint was barred under section 242(3.1)(b) was:
(1) the complaint (i.e., the fact situation complained of) must be essentially the same in the other "procedure for redress"; and
(2) that the other procedure must be capable of producing some real redress which could be of personal benefit to the same complainant.
The Board emphasized that the unjust dimissal procedure was intended to provide a form of redress where redress was not otherwise available. The Board said it did not matter to its analysis whether an employee had actually engaged the other procedure for redress or whether or not that other procedure was still available to the employee.
In Kommepalli, the Board found that the two complaints were based on a core set of extremely similar facts. The Board concluded that the reprisal complaint procedure under Part II of the Code constituted a "procedure for redress" and the remedies available under Part II offered a real form of redress that would be of personal benefit to the employee.
In Brown, the Board found that the unjust dismissal complaint and the human rights complaint were essentially the same. The Board also found that the human rights complaint mechanism and the broad remedies available under the Act provide real redress which could be of personal benefit to the employee. The Board said it retained residual jurisdiction to consider the unjust dismissal complaint if the Canadian Human Rights Commission referred the matter back to the Board in accordance with a procedure provided for in the Act. As that had not occurred in Brown, the Board was unable to consider the unjust dismissal complaint.
Take Away for Employers
The jurisdiction of the Board to hear unjust dismissal complaints under Part III of the Code is a residual authority. Where another procedure is available to an employee, the employee will need to pursue the other procedure and will not simply be able to default to the unjust dismissal procedure.
Following these two decisions from the Board, employers may see a decline in cases proceeding through the unjust dismissal procedure and an increase in employees pursuing other available procedures. These decisions may also provide a basis for employers to challenge referral of an unjust dismissal complaint to the Board for adjudication.
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.