By Richard Johnson.
In Canada, most non-unionized employees have one primary means of recourse (absent a human rights claim) for challenging a dismissal: litigation through our civil court system.
For non-unionized employees working in a federally governed industry such as air transportation or banking or for a First Nation, however, there are two primary options:
- They can file an unjust dismissal complaint under the Canada Labour Code (the Code); or
- They can file a Court claim for wrongful dismissal under the common law.
This blog post outlines both these options, and highlights the various factors a dismissed non-managerial employee should consider before pursuing one or the other, including the reasons for the dismissal, the time that has elapsed since the dismissal, and the remedies you would like to pursue.
Reasons for Dismissal
If you have been employed in a non-managerial position for longer than 12 months with a federally-governed employer, then under the Code, your employer must have just cause to dismiss you, or be able to prove that there was a lack of work or discontinuance of function.
Under the common law in BC, an employer can dismiss you at any time so long as the reason does not violate human rights or employment-related legislation. So long as you were not fired for “cause” you are entitled to reasonable notice of your dismissal or severance in lieu of notice (or the amount of notice / severance set out in your employment contract, if you have one). If you do not receive such notice or severance, your dismissal was “wrongful” and you can sue your employer in Court.
Under the Code, if your employer can not prove just cause, lack of work or discontinuance of function, you can seek monetary damages (from the dismissal to the point of hearing, less money made from new employment) and/or reinstatement (i.e. a return to your position with the employer).
The civil courts cannot order reinstatement. Your primary remedy in a wrongful dismissal court action is monetary damages.
Therefore, if you do not want to seek reinstatement and, in consultation with legal counsel you feel you are better served by seeking the severance set out in your contract or what is reasonable in your case, then you can file a claim through the Courts for wrongful dismissal.
Aside from the remedies available to you, it is important to consider the deadlines that apply to each type of claim.
To pursue an unjust dismissal complaint under the Code, you must file it within 90 days of the dismissal.
A Court claim in BC, on the other hand, must be filed within two years of the date of your dismissal. Therefore, if some time has gone by since you were dismissed, your only option for challenging your dismissal may be a Court action. (Which Court you file your claim in may also depend on the amount of damages you are claiming. If your claim falls is for $35,000 or less, you may proceed through the Small Claims Court system.
There are many strategic and legal factors to consider when deciding whether to pursue a Code complaint or a Court claim. Because of this, it is important to get legal advice to ensure that your chosen path is the right one for your specific circumstances.
In addition to the options described above, you may have other claims against your employer if you have faced discrimination contrary to the Human Rights legislation, or retaliation for raising a workplace safety issue, for example. These additional issues are also important to canvass when developing a strategy that works best for you.
Have questions about a dismissal? Contact us!