Written by: Sara Hanson and Melissa VanderHouwen
The following is information for federally regulated employees whose employment is governed by the Canada Labour Code (the “Code”). If you are a provincially regulated employee, please see our earlier blog post with information about how your rights may be impacted by COVID-19.
Unlike provincially regulated employees, who can be terminated without cause as long as their employer gives them adequate notice or pay in lieu of notice under the British Columbia Employment Standards Act, many federally regulated employees can only be terminated with just cause. Workers in industries such as telecommunications, railways, banking and interprovincial trucking, among others, are federally regulated.
Most non-unionized federally regulated employees in Canada are protected against being dismissed without cause under Part III of the Code. This was clarified by the Supreme Court of Canada Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.
The Unjust Dismissal provisions in the Code (ss. 240 – 246) permit non-unionized employees who have completed 12 consecutive months of employment to make a complaint in writing to an inspector within 90 days of being dismissed. If the inspector is unable to assist the employer and the employee with resolving the matter, the complaint can be referred to an adjudicator who will determine if the employer had just cause to terminate the employee, and if not, order the remedies the employee is entitled to, which include reinstatement to their employment (s. 242(4)).
Under the Code’s Notice and Severance provisions (ss. 230 and 235), employees who fall outside of the Unjust Dismissal provisions can be dismissed without cause after three consecutive months of employment, if the employer gives them two weeks’ written notice, or two weeks’ pay in lieu of notice (s. 230). In addition, employees who have completed 12 continuous months of employment are entitled to severance pay equal to the greater of two days wages at the employee’s regular rate of wages for their regular hours of work, and five days wages at the employee’s regular rate of wages for their regular hours of work (s. 235).
Prior to Wilson, there had been uncertainty as to whether the Unjust Dismissal provisions prohibit dismissals without cause. The Court’s decision in Wilson made clear that dismissals without cause are prohibited for those employees to whom those provisions apply. The Court clarified that the Code’s Notice and Severance provisions only apply to employees who fall outside the Code’s Unjust Dismissal provisions (ss. 240 – 246). Employees who fall outside the Unjust Dismissal provisions include those who are terminated after working for more than 3 months but less than 12 months (s. 240(1)(a)), managers (s. 167(3)), and employees who are laid off due to lack of work or discontinuance of a function (s. 242(3.1)(a)).
A lay-off is deemed to be a termination under the Code unless it meets one of the criteria set out in section 30(1) of the Canada Labour Standards Regulations. Those criteria include, amongst others, a lay-off of three months or less, and a lay-off of more than three months where the employer notifies the employee in writing that they will be recalled to work within a fixed period of no more than six months from the date of the lay-off.
If you are a federally regulated employee, and you are laid off for more than three months because your employer says there is a lack of work or they are discontinuing operations due to COVID-19, your lay-off may be deemed a termination under the Code entitling you to pay in lieu of notice and possibly severance pay. You may also be entitled to file an unjust dismissal complaint. You should seek legal advice about your specific situation to determine what your rights are under the Code.
If you are a unionized employee who works for a federally regulated employer, the starting point for your legal rights is your collective agreement. Under all collective agreements, employees can only be terminated for just cause. However, most collective agreements permit employers to lay off employees for lack of work. If you have specific questions about your rights as a unionized worker, you should speak to your union representative.
Crucially, all federally regulated employees, whether unionized or not, now have access to job protected leave for reasons related to COVID-19. This means that if you need to take time off because you fall ill with COVID-19 or need to care for someone who is ill, your employer cannot terminate your employment or lay you off. You can read more about this amendment to the Code in our earlier blog post.
This blog is not legal advice, and is intended to provide readers with timely information about their employment rights relating to the COVID-19 pandemic. If you need advice about your specific situation, you should speak to a lawyer. The lawyers at Moore Edgar Lyster LLP can be reached here.