Unjust Dismissal Canada Labour Code

Part III

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Employees who believe they have been unjustly dismissed may lodge a written complaint of unjust dismissal with the department, subject to admissibility.

Unjust Dismissal

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Unjust dismissal admissibility criteria (10)

• Complaint must be in writing. • Complaint must be made within 90 days of

dismissal. • There must exist an employer-employee

relationship. • Federal jurisdiction. • Not a manager.

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• Employee was dismissed (also constructive dismissal).

• Employee is not a member of a group of employees subject to a collective agreement.

• Employee has completed 12 consecutive months of continuous employment.

• Employee was not laid off due to lack of work or any other discontinuance of a function.

• Employee does not have other legislative means of redress.

Admissibility Criteria (10) (cont’d)

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Admissibility Criteria (cont’d)

If, after investigation, doubt exists as to whether the complainant meets the admissibility criteria, the benefit of the doubt is usually given to the complainant.

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Unjust Dismissal Process

• Once complaint is received, an inspector will verify the admissibility.

• The employer is required to provide written reasons for termination.

• The inspector assists the parties to settle the complaint.

• Inspector’s role is mediator, not enforcer.

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Alternative Dispute Resolution • Parties meet together to attempt to resolve

the complaint. • Officer acts as a mediator only. • Advantageous to parties in that they can

resolve the dispute between themselves quickly and beneficially.

• Details kept confidential.

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Unjust Dismissal Process

If the Officer is not able to assist the parties to settle within a reasonable time, the complainant may request that the complaint be referred to an adjudicator.

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Unjust Dismissal Process Adjudicator’s Powers

• Rule on preliminary objections, such as jurisdiction or lay-off.

• Accept testimony and evidence. • Rule “Just Cause” . • Rule “Unjust Dismissal”.

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If Dismissal is ruled “Unjust”, the adjudicator may:

• Reinstate the employee; • Award lost wages incurred as a result of

the dismissal [Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.)]

• Award costs, including legal fees; • Award anything else to counteract the

consequences of dismissal.

Adjudicator’s Powers

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Principles and Practices of Workplace Discipline

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Three common reasons for dismissal: • Incompetence: (unsatisfactory performance): a person

does not have the abilities or skills to perform the assigned duties.

• Negligence: employee has the required skills but seems to ignore some of their duties or are careless in performing them.

• Misconduct: Breaking the rules which make the work place safe and efficient (including dishonest and illegal activity, impropriety and sexual harassment, drunkenness, insolence and insubordination).

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• Extreme Incompetence • Extreme Negligence

― Suggests reckless or wanton disregard of duties ― Endangering the safety of others ― Results in employer or other incurring significant

expense • Extreme Misconduct

― Theft ― Vandalism ―Alcohol/drug abuse on the job ― Illegal activity

What is “Just Cause”?

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Condonation

A fundamental principle that an employer who knowingly accepts a certain standard of performance or of misconduct is said to condone such action, and is thereby prohibited from relying on such behaviour as grounds for dismissal.

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Corrective Action

•Act early, before poor habits/attitudes form. •Be fair. •Goal is to improve employee performance. •Reinforce policy. •Communicate.

If no cause exists for “summary dismissal” the employer is obligated to follow a multi-step process to enable to employee to perform in accordance with expectations.

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Incompentence

• Set clear, reasonable standards. •Communicate standards to employee. •Provide reasonable supervision, training and

instruction. •Provide time and opportunity to reach those

standards. •Provide reasonable warning that failure to meet

standards could result in dismissal.

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Employer must show: • The level of job performance required and that

the level was communicated to the employee • That suitable instruction was given to enable the

employee to meet the standard • That the employee was unable to meet the

standard • That there had been warning to the employee of

possible dismissal

Incompetence - Establishing “just cause”

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Employer must act and show that he acted: •objectively; • responsibly; •without discrimination; •without whim or arbitrariness; • solely for the good of the enterprise.

Incompetence - Establishing “just cause” (cont’d)

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•Act within a reasonable amount of time; • Set reasonable standard of performance; •Communication expectations; •Provide practical guidance; •Allow adequate time to achieve goal; •Warn employee of discipline/dismissal; •Keep records.

Review – Incompetence

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• In-depth establishment of the misconduct. •Progressive discipline.

Misconduct Two fundamental principles

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•Duty of fairness (opportunity to be heard). •Full investigation to allow everybody’s version

of the facts. •Never underestimate details.

Establishing - Misconduct

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A progressive disciplinary action is a measure allowing the employee to correct an inappropriate behaviour on the job. Measure aims at correcting the behaviour, as opposed to punishing the employee.

Misconduct - Progressive discipline

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The level of strictness of the measure may differ, taking into consideration various criteria including, but not limited to: • the frequency of the misconduct; • the severity of the misconduct; • the repetition of an offence; • the unacceptable nature of the fault;

Misconduct -Progressive discipline (cont’d)

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•Mitigating factors; •Aggravating factors.

Misconduct Progressive discipline (cont’d)

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•Verbal Warning (Informal); •Written Warning, to be put in personnel file; •Suspension (this step may last over a long period

of time with length of suspension ranging from one day to six months or more);

•Dismissal.

Misconduct - Establishing “just cause”

4 Milestones leading to a dismissal:

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A company policy will explain generally under what circumstances an employee will be disciplined and/or dismissed. This should be fair to employees and applied evenly and consistently.

Dismissal and Policy

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•To be valid, a company policy should be written, known, and applied consistently to all employees. The company policy should meet the criteria of reasonableness and non-discrimination.

•Every situation should be subject to an in-depth review with the employee before the warning is put in his/her personnel file.

Tips

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•Every situation should be thoroughly recorded in writing, in order to carry weight before an adjudicator.

•Don’t wait until the decision to terminate to begin the corrective process!

•May wish to seek legal advice.

Tips (cont’d)

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•Reasonable policy, applied equally; • Investigation; •Records; •Ensure employee is aware of ramifications; •Progressive discipline to correct behaviour.

Review – Misconduct

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Constructive Dismissal

• Conditions of work change to a degree that there is a fundamental change in the employment contract.

• Example: demotion, real or implied • Intention to force the employee to resign • Constructive dismissal is generally treated as an

unjust dismissal

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QUESTIONS???