The Supreme Court of Canada has issued a landmark employment law decision. The case of Wilson v. Atomic Energy of Canada focused on the definition of “unjust dismissal” under Part III of the Canada Labour Code. In a nutshell, the Supreme Court has held that the vast majority of federally regulated employees can access the unjust dismissal provisions of the Code. These employees can seek reinstatement or significant compensation on dismissal.
In other words, a Federally regulated employer, for example a bank or cable company, cannot simply dismiss an employee on a “without cause” basis and provide severance arrangements. Dismissed employees in these circumstances can file unjust dismissal complaints and seek reinstatement.
The Wilson v. Atomic Energy decision considered the circumstances of a four and a half year employee with a clean disciplinary record. The employee was dismissed on a “without cause” basis and provided with a severance package. He challenged the decision and filed an unjust dismissal complaint. Although successful at adjudication, the decision was overturned at the Federal Court and Federal Court of Appeal levels and worked its way up to the Supreme Court of Canada.
Writing for herself and five other Supreme Court justices, Abella J reviewed the history of the Canada Labour Code’s unjust dismissal provisions, which were enacted in 1978. She concluded that the purpose of these enactments was to ensure that non-unionized Federally regulated employees would be entitled to protection from dismissal without cause. Federally regulated employees, she concluded, enjoy “fundamental protection from arbitrary dismissal” even with pay.
Although there are certain exceptions including situations involving the “discontinuance of a function” or a “lack of work,” this Supreme Court decision makes it abundantly clear that employers in the Federally regulated sector cannot simply terminate the employment of most employees.
This decision could greatly increase the number of unjust dismissal complaints in Federally regulated workplaces. For example, any non-managerial employee, with one year or more of service, working for a Canadian bank can seek reinstatement if the employee is dismissed on a “without cause” basis, even if a severance package is provided. This would, of course, invalidate the minimum type severance provisions that some Canadian banks have tried to use in their employment contracts with employees.
Employees who have been dismissed by a Federally regulated employer must file the unjust dismissal complaint within 90 days of the dismissal. If not, it appears from the decision that the employee loses the right to this statutory framework and is left with common law remedies alone.
Three of the Supreme Court justices endorsed a vigorous dissent in which they would have held that the Canada Labour Code is, essentially, procedural and does not override Canadian common law. The minority interpretation would have gutted the Code of any real meaning for Federal employees.
The dissenting justices correctly highlighted the fact that a Federally regulated employee can lose his or her protection if the employee misses the 90 day timeline. Perhaps a future court decision will enable employees to use the civil courts, if necessary, to enforce the unjust dismissal provisions if the deadline has been missed. However, for now, dismissed employees and their counsel should ensure that they file an unjust dismissal complaint within the 90 day time period.
It is interesting that the Supreme Court, in both the minority and majority reasons, chose to comment on the common law standards of dismissal by way of obiter. The court noted that, at common law, employers can dismiss employees “for whatever reason they want so long as they give reasonable notice or pay in lieu of notice.” This suggests that, for the time being, the court is not about to add in a “good faith” obligation as a requirement for dismissing a non-federally regulated employee.
This decision reinforces the wide gap between employees in the Federal sector and employees in most other provincial jurisdictions. An employee dismissed on a without cause basis in Ontario can file a wrongful dismissal complaint and sue for dismissal damages in the court system. In some cases, the employee may also have a valid claim for other damages or remedies. But reinstatement is not an option, nor is the court required to consider why the employee was dismissed, if the dismissal was on a “without cause” basis.
But in the federal sector, it is now clear that the vast majority of dismissed employees enjoy “union-like” protection. They can file unjust dismissal complaints and seek reinstatement or significantly increased damages. Non-managerial employees with more than one year of service who have been dismissed from Canadian banks, telephone and cable companies, radio stations and other industries have significant negotiating leverage and may demand reinstatement or negotiate significantly higher severance packages.
Damages under the Canada Labour Code can be exponentially higher since employees can be awarded reinstatement and compensated for the time that they were out work. Overall, this is an extremely helpful decision for federally regulated employees.