As discussed in a previous post, employees in federally-regulated industries who are terminated for cause are afforded a unique remedy under the Canada Labour Code, known as unjust dismissal. This allows a non-managerial employee with greater than one year of service to seek a review by an adjudicator or judge. If the employee is successful, the decision-maker may order a remedy of payment of lost wages to the date of the hearing, additional damages if the employee was treated harshly, and also potential reinstatement of employment.

Whether reinstatement is appropriate in a given case will depend on the particular circumstances, and the court is granted considerable discretion to make that determination.

Tricky Issue

A recent Ontario decision saw the court finding in favour of an employee in an action for unjust dismissal. However, the court found that while the employer had in fact unjustly dismissed the employee, reinstatement was not an appropriate remedy due to the contributing disciplinary issues on the part of the employee, and her failure to acknowledge her performance issues in the hearing.

The employee had been a retail supervisor for a federal telecommunications company and had been discharged following a protracted period during which she regularly failed to clock in and out, demonstrated poor attendance, and failed to keep her manager informed of her whereabouts while working. While the adjudicator determined that the conduct was problematic, ultimately he found that the employer had discharged her employment hastily, and failed to attempt a progressive discipline schedule in order to correct the issues.

While the action was decided in the employee’s favour, the adjudicator found that she demonstrated an unwillingness to take responsibility for her actions or and commit to improving her performance. During the hearing, the employee provided a series of excuses for her failings rather than owning her share of the responsibility. He also found that while she succeeded as a salesperson, she was not a good supervisor, as she had been the subject of several complaints from direct reports. Given these factors, the adjudicator found that reinstatement, in this case, would not be wise.

These findings compelled him to decline to award reinstatement, even though he had found the dismissal to be unjust. The ratio may be hard to follow but it is nonetheless reflective of the considerable discretion given to the decision-maker in this context. Had this been a union grievance, it is quite likely reinstatement would have followed as a reflexive remedy.

An award was made of a further 4 months’ notice pay to compensate for the loss of reinstatement, which appears to be a modest sum to award in lieu of reinstatement.

Employers’ Take Away

Federally-regulated employers may be encouraged by this finding. Reinstatement is a powerful remedy under the Canada Labour Code, but it is by no means assured even where there is no established cause for dismissal.

Employees’ View

Viewing this issue from the other side, employees must take care to prepare for these arguments. Employees should be ready to acknowledge any performance or disciplinary deficiencies and commit to improving their performance going forward if they hope to be reinstated.

Get Advice Before You Act

If you are an employer or an employee in a federally-regulated industry, take the time to get advice before actions are taken. Contact one of the Toronto employment and labour lawyers at Mallins Law. We regularly advise employees and employers on legal workplace issues, including termination and dismissal. Contact us online or by phone at 647-792-0310 to schedule a consultation.