Federally regulated employees or employees who work with a federally regulated employer are protected under the Canada Labour Code ("the Code") which has strict procedures for making a complaint against what would be considered an unjust dismissal. A separate regime of rules and legislation governs federal workers and public servants. Under the Code, an employee cannot be dismissed without just cause. Consequently, if an employer dismisses an employee without just cause, it becomes an unjust dismissal. Remedies under the Canada Labour Code are available to non-unionised employees who are not covered under a collective labour agreement.
Notice period under the Code
The Code prescribes a minimum notice period and states that an employee, after serving three consecutive months of continuous employment is entitled to at least two weeks’ notice or 2 weeks’ pay in lieu of notice. The remedies for unjust dismissal are only available to employees who have completed a minimum of twelve consecutive months of continuous employment with the same employer. The employee in such an instance will be entitled to any of any of two remedies, that is, a reinstatement or compensation for damages. Compensation for damages that may be awarded to an employee depends on factors such as the employee’s age, position, and length of employment.
Severance under the Code
Under the Code severance must be paid to an employee who has been employed for more than twelve consecutive months. Under the Code, after serving twelve consecutive months of continuous employment, an employee is entitled to severance which may be the greater of two days' wages for each completed year of employment or five days' wages. Note that these are the minimum prescribed by the Code and an employee may be entitled to more notice based on either the termination notice clause in the contract of employment or under the common law where the court finds that reasonable notice was owed.
Opinions for challenging unjust dismissal under the Code?
Challenging an unjust dismissal is a time-sensitive venture. Time is always of the essence within this scenario and acting fast on competent legal advice may be the reason why you can get compensation or not.
The Federal Labour Program: If you have been unjustly dismissed by a federally regulated employer, you can file a complaint at the Labour Program office. Your complaint must be filed within 90 days of the dismissal. Claims for unpaid wages which may include notices and severance must be filed within 6 months of the dismissal. This is a mediatory program that tries to assist the employer and employee to reach a settlement failing which an arbitrator will be appointed to hear the case.
Civil Action in Court: An employee may file a civil suit for compensation and severance specifically where the employment relationship has existed for many years and there is significant severance and compensation to be recovered.
The Canadian Human Rights Commission: An employee who has been unjustly dismissed on prohibited grounds or discriminated against on grounds such as religion, age, sex, race or ethnic origin, colour, sexual orientation, gender, marital or family status or disability, etc., may approach the Canadian Human Rights Commission within 12 months of the last incident of discrimination.
If you have been terminated whether for just cause or without cause or you feel that your role has been fundamentally changed or dismissed in a way that you can not confidently continue to work at the job, a tell-tale sign of constrictive dismissal, then you need to speak to an employment lawyer as quickly as possible. You also may be entitled to a “common law notice”, which can be a longer period than what is set out in the Code. Whether a common law notice applies to you also depends on whether you have a written contract and several other factors.
At Arcstone Law Corporation, we can assist you in answering all your questions and getting you a better deal with your ex-employer. You can contact us by email admin@arcstonelaw.com or book a consultation on our website. All legal services are rendered through Arcstone, a law corporation.
Contributor:
Name: 'Bolanle Oduntan*
Title: Managing Lawyer
Email: bolanle@arcstonelaw.com
*practicing through Arcstone Law Corporation
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