Labour Program
Information on
LABOUR STANDARDS
8
Unjust Dismissal
LT-035-06-18E
Part III of the Canada Labour Code (Labour Standards)
Division XIV – Unjust Dismissal of Part III of the Canada Labour Code provides a procedure for making
complaints against a dismissal that an employee considers to be unjust.
The following questions, answers and case studies will be of interest to employers and employees under
federal jurisdiction. Publication 1 – Summary of this series describes the types of businesses covered
bythe Code. It is available on the Government of Canada website at https://www.canada.ca/en/
employment-social-development/services/labour-standards/reports.html.
1 Who is entitled to protection from unjust dismissal?
All employees, managers excluded, who have completed at least 12 consecutive
monthsofcontinuous employment with the same employer and who are not covered
byacollectiveagreement.
Employees should contact the Labour Program if they have questions regarding
managementstatus.
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2 What can employees do if they feel that they have been
unjustly dismissed?
a) They can request, in writing, a written statement from their employer giving the reasons
fordismissal. The employer must reply within 15 days after the request is made.
b) They can le a complaint alleging unjust dismissal at any Labour Program ofce no later
than90days from the date of the dismissal.
The complaint may be made by the dismissed person or by a representative, such as a lawyer.
The complaint must identify the employee, state that the employee was dismissed, include the date
of dismissal, and claim that the dismissal was unjust.
3 What is constructive dismissal?
The courts have held that the unjust dismissal provisions of Part III of the Canada Labour Code
also apply to “constructive dismissal”. In a constructive dismissal, the employer has not directly
red the employee, but has failed to comply with the contract of employment in some major
respect or has unilaterally and substantially changed the terms of employment or expressed
anintention to do either of these.
In such a case, the employee must clearly indicate within a short period of time, that he or she
does not accept the new conditions of employment. Often the employee feels compelled to resign
rather than accept the new conditions of employment. This may constitute constructive dismissal.
Not all cases of an employee quitting amount to “constructive dismissal”. Seek more information
from any Labour Program ofce if you think this may apply to you.
4 Who will normally deal with the complaint?
Initially, an inspector will try to help the parties settle the complaint. The inspector acts as a
mediator, trying to negotiate a settlement that is acceptable to both parties. Settlement might
consist of a monetary payment or changes to the dismissed employee’s employment record.
The majority of unjust dismissals are resolved at this stage.
If the inspector is unsuccessful, the dismissed employee can request that the complaint
bereferred to an adjudicator.
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5 Does the complaint automatically go to adjudication?
No. The Minister of Labour decides whether or not to appoint an adjudicator.
If an adjudicator is appointed, the date is set for a hearing at which the employer and employee
can present evidence. With few exceptions, it is up to the employer to prove that the dismissal
is justied.
The procedures used at an adjudication hearing are less formal than those in a civil court.
Therules of evidence are relaxed to ensure that all relevant material is available to the adjudicator.
Parties are free to call on witnesses and choose whether they will be represented by a lawyer.
After hearing all the evidence, the adjudicator must make a decision on the justness
ofthedismissal and determine the remedy entitlement.
6 What are the powers of an adjudicator?
An adjudicator is empowered to consider the complaint and render a decision which
isbindingon both parties.
Where an adjudicator nds the dismissal to be unjust, the employer may be ordered to:
a) reinstate the employee with or without compensation for lost wages;
b) pay compensation for lost wages, without reinstating the employee; or
c) do anything that is equitable in order to remedy any consequences of the dismissal;
e.g.,clearan employee’s record of any references to the dismissal, pay legal costs, etc.
7 Can an adjudicator’s decision be appealed?
No. The decision of an adjudicator is nal. It cannot be appealed in court. However,
itmaybesubject to an application for review by the Federal Court of Canada under
certainlimited circumstances.
8 Who pays for the adjudicator?
The Labour Program pays for the adjudicator, but the employer and the employee are
responsible for the cost of legal counsel if they choose to be represented by a lawyer.
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9 Is there a distinction between dismissals, terminations
or lay-offs?
Dismissals and permanent terminations may be the result of disciplinary actions which
canbefound to be just or unjust through the procedure described in the Code. However,
temporary lay-offs or permanent terminations stemming from economic considerations such
aslack of work or discontinuance of a function cannot be appealed under the Code. This does
not mean that an employer can re an employee and then claim that lack of work or a change
inwork assignments is the reason. Where an employee believes that there was no justication
for the termination, heor she may le an unjust dismissal complaint with any Labour Program
ofce. Then it is the employer’s responsibility to demonstrate that the termination actually
wasfor valid economic reasons.
10 Does the adjudication process prohibit the employee
from pursuing a civil remedy against the employer?
Filing a complaint under the Canada Labour Code does not prohibit an employee from
pursuinga civil remedy. Adjudicators and the courts have concurrent jurisdiction in this area.
Although it seldom occurs, an employee may le civil action against his or her employer
forwrongful dismissal while the Department investigates the unjust dismissal complaint.
I. Case studies
The following case studies are based on actual unjust dismissal complaints. Only the names
havebeenchanged. The case studies provide examples of how this legislation has been applied
andexplained in the past.
Case 1
Lack of work/discontinuance of a function. Special issue:
Employer’s selection criteria to lay off an employee.
Peter Wallace had been employed for 25 years by a federal Crown corporation when he was permanently
laid off with six months’ severance pay. The employer said the termination was necessary because
budget constraints had forced the corporation to downsize.
Peter thought that another employee at the same level but with less service should have been laid off rst.
He also heard that a new employee had been hired to do some of his work.
Peter made a written complaint to the Labour Program claiming the agency had unjustly dismissed him.
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The inspector handling Peter’s complaint interviewed the managers who made the termination decision.
They provided copies of Peter’s employment record which showed negative evaluations and that several
interviews had not caused signicant improvement. They also said that due to budget problems the work
of Peter’s department had been cut by more that two-thirds after his lay-off. Finally, they argued that Peter
received a generous severance package that took into account his position and years of service.
The two parties could not agree, and Peter requested the appointment of an adjudicator.
The adjudicator heard evidence from witnesses and arguments from lawyers for both sides. Peter’s lawyer
argued that he had been dismissed for disciplinary reasons without the benet of any system of progressive
discipline. He said that the fact that a new employee was carrying out duties similar to Peter’s showed that
the job had not been eliminated and that budget problems were not the real reasons for Peter’s dismissal.
The employer’s attorney argued that the similarity between the responsibilities of the two was minor
andhad been the result of a reorganization caused by the corporation’s or agency’s budget constraints
and general workforce reduction. The employer also said that they chose to keep the other employee
because of his superior work performance.
Adjudicator’s Decision
After examining the facts, the adjudicator rejected Peter’s complaint. He concluded that Peter was,
infact, terminated due to discontinuance of his position.
Case 2
Alleged reason for dismissal: Poor work performance. Actual reason for
Dismissal: Discrimination. Special issue: Double jurisdiction (other redress).
Kim Draper had worked for two years as a camera operator at a small television station when she was
red for “poor work performance”. This was based on several evaluations of her work by her supervisor.
She complained to an inspector. Kim explained that she believed her supervisor was “from the old school”
and didn’t consider women competent to carry out technical jobs like that of camera operator. She gave
examples which indicated to the inspector that she might have been the victim of systematic discrimination
by the supervisor.
Outcome
The inspector explained the role of the Canadian Human Rights Commission (CHRC). Her complaint
wasthen referred to the CHRC, which determined that discrimination was the cause of her dismissal.
The CHRC subsequently negotiated a settlement with the employer.
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What determines whether a dismissal is just or unjust?
In reaching their decisions, adjudicators apply well established principles of discipline in the work place
to the circumstances of each case. If these principles have been followed by the employer in deciding to
dismiss, then the adjudicator may nd that the dismissal was just. If, on the other hand, these principles
have been violated to the disadvantage of the then employee, the dismissal would likely be found unjust.
Sections II to V of this publication describe the principles involved.
II. Key Factors in the Employer’s Decision to Discipline
The Labour Program views dismissal as the last and most serious step an employer can take in
thedisciplinary process. Dismissal can be justied only in those terms. It is useful to understand
anemployer’s usual motivations for taking disciplinary action.
The objective of disciplinary action is to correct inappropriate behaviour in the work place. Personnel
management experts have identied three general grounds for disciplinary action: incompetence,
negligence and misconduct.
Incompetence means that a person does not have the abilities or skills to perform the assigned duties.
Negligent employees may have the required skills but they seem to ignore some of their duties
orarecareless in performing them.
Every work place has rules to make its operations efcient and safe.
Misconduct means that these rules have been broken. Although an employee may break these rules
without causing a direct or immediate impact on the output of the organization, the attitudes of employees
and customers may be negatively affected. Thus, disciplinary actions may be justied.
A number of factors should be considered before an employer decides to dismiss for disciplinary reasons.
There are some cases where the violation of a work place rule or the degree of incompetence or negligence
is so great that the employer is justied in dismissing an employee immediately. However, an employee’s
misbehaviour usually has relatively minor consequences and is easily corrected. Employers should use a
system of progressive and corrective discipline for misconduct which permits employees to learn from
their mistakes and improve their performance. Dismissal is normally the last resort in such a system.
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Factors considered by employers when disciplining an employee
Employers should take into account eight factors before taking disciplinary action:
a) Seriousness of the problem
Did the action of the employee have major or minor consequences for the employer?
Wastheemployee aware of the consequences?
b) Frequency of the problem
Is this type of misbehaviour common among other employees?
c) Time since last infraction
Does the employee have a history of this type of behaviour, or was the incident
arstoffence?
d) Employee’s work history
Has the employee performed his or her job satisfactorily in the past?
e) Extenuating or mitigating factors
Was the employee facing pressures such as personal problems or provocation
whichmayhave led to the improper behaviour?
f) Degree of orientation
Were the work place rules clearly explained? Had the employee been informed
abouttheemployer’s expectations concerning job performance?
g) History of organization’s disciplinary practice
Has the employer dealt consistently with similar offences in the past?
h) Implications for other employees
What effect did the employee’s action have on the attitudes or actions of colleagues?
When an incident occurs which the employer believes warrants disciplinary action, it is the employer’s
responsibility to investigate the circumstances fully. During this investigation, the employee should be
given every opportunity to provide his or her view of the incident. No disciplinary measure should be
started without full knowledge of the facts. This is especially true when dismissal is being considered.
Adjudicators often use these considerations when deciding whether a dismissal was justied.
Anexample of this kind of situation is given in Case 3.
After the appropriate disciplinary measure has been chosen, the employee should be informed
oftheaction, the reasons for it and the changes in behaviour which are expected.
It has been said that a good system of corrective discipline is like a “hot stove”. Those approaching
itarewarned of its heat, and its effect on those who touch it is immediate, consistent, and impersonal.
The same principle applies to dismissal, the most severe form of discipline.
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Case 3
Unsatisfactory work performance. Special issues: Degree of orientation
and employer’s disciplinary practices not followed.
Diane Zubiak, a clerk with a federal Crown corporation, worked for two years in a small remote ofce until
she was dismissed. In the dismissal letter, the employer said the reason was Diane’s “unsatisfactory work
performance”. Diane wrote to the nearest Labour Program ofce stating she believed she had been unjustly
dismissed. She then met with an inspector. She told the inspector that she had been asked to do work
for which she had not been trained. As well, she had to do this work while she was alone in the ofce
with no one to answer her questions. She also thought her supervisor disliked her.
The inspector tried to get the supervisor’s side of the story, but she refused to discuss the case.
Theinspector contacted a personnel ofcer at the employer’s regional ofce and reviewed the status
ofDiane’s complaint. The personnel ofcer investigated and found that the corporation’s standard
disciplinary practices had not been followed in Diane’s case.
Outcome
Arrangements for Diane’s reinstatement with full back pay were promptly made.
III. Employee Infractions and Progressive Discipline
Most cases of misbehaviour on the job are not serious enough to warrant dismissal. When misconduct
isrelatively minor, the employee should be subject to a system of progressive, corrective discipline.
Thisprovides him or her the opportunity to change behaviour which the employer perceives
asunsatisfactory.
Progressive discipline can be used to improve employee’s job performance or enforce rules in the
workplace. Poor attendance, tardiness, and insubordination are three common violations of work place
rules which lead to progressive discipline. Employers may also use progressive discipline to correct
anemployee’s poor attitude towards his or her work or other employees.
Generally, systems of progressive discipline have several steps which may include a verbal warning,
awritten warning, and suspension. In cases where poor job performance is the problem, some employers
demote unsatisfactory workers into less responsible positions. Dismissal should be considered only where
employees fail to respond to these measures by improving job performance and avoiding rule violations.
When a complaint of unjust dismissal under the Canada Labour Code is placed before an adjudicator,
the principle of progressive discipline has great impact on the settlement process. It is not enough for
the employer to have a system of progressive discipline on paper. Because each employee has the right
tobe treated equally, progressive discipline must be applied consistently (to each employee) for each
infraction or offence.
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To nd that a dismissal is just, the adjudicator must be satised that the employee’s record shows a
pattern of unacceptable behaviour leading to a “culminating incident” or nal incident which resulted in
the dismissal. Many employers use this concept to support the decision to dismiss. Without a culminating
incident, which itself justies discipline, an employee cannot be dismissed on the grounds of his or her
work record alone. Moreover, the employer must have warned the employee that the previous misconduct
was not acceptable and that further inappropriate behaviour could lead to dismissal.
A well documented personnel le is one tool which employers can use effectively before an adjudicator.
A record should be kept of the disciplinary history and performance appraisals of each employee. The le
should include copies of appraisals, dates and details of infractions, comments of supervisors, disciplinary
action taken, the remedial efforts made by the employee, and correspondence between the employer
and employee concerning work performance and misconduct.
Examples of this kind of situation are given in Cases 4, 5, and 6.
Case 4
Unsatisfactory work performance. Special Issues: Competent before
transferred to new position. Employer’s disciplinary policy not applied.
George Brown had worked for the same company for almost ve years. He was dismissed for an
“inability to meet performance standards required”. George led a complaint with the Labour Program
claiming that his dismissal was unjustied.
George and his employer were unable to settle, so an adjudicator was appointed.
The evidence presented to the adjudicator showed that during the rst four years, George’s work
performance was entirely satisfactory. Then he was moved into a new position with signicant new
challenges. George was never formally evaluated in the new position and never received any formal
notice that his work was unsatisfactory. Ten months after beginning the new job, he was red.
In George’s defence, the adjudicator was provided with the employer’s own guidelines for dealing
withunsatisfactory job performance. The policy described a system of progressive discipline which
included verbal and written warnings, interviews to discuss the employee’s performance and to develop
aprogram for improvement, and the setting of a probation period of up to six months during which
anemployee could improve his or her performance.
Adjudicator’s Decision
The adjudicator concluded that the employer’s policy of progressive discipline had not been followed
inGeorge’s case and he had been unjustly dismissed. As George had not sought reinstatement,
theadjudicator ordered the employer to pay the employee six (6) months salary.
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Case 5
Insubordination, lack of interpersonal skills. Special issues:
Culminating incident. Progressive discipline applied. Aggravating factors.
Colin MacDonald, a computer technician, had worked for a communications rm for 18 years. He was
often required to work with colleagues on major projects. In the early years, Colin’s respected technical
abilities had resulted in promotions. However, his advancement was slowed by poor interpersonal skills
and negative attitude toward some of his fellow workers. After refusing a direct order of his supervisor
todo work outside his regular duties, Colin was dismissed.
Colin sent a written complaint to the Labour Program that he had been unjustly dismissed.
Theinspectorfound that neither of the parties was interested in compromising to reach a negotiated
settlement. The complainant requested the appointment of an adjudicator.
The employer’s lawyer presented a large number of personnel appraisals showing that Colin’s lack of
interpersonal skills had long been a concern. As well, they showed that Colin had been provided with
special training to improve but after a few months of improvement his performance would slip again.
The employer also showed that in the four years preceding the culminating incident, Colin had been
suspended twice. One two-day suspension for insubordination and one ve-day suspension for leading
agroup which made sexist remarks to another employee in the cafeteria.
Colin’s lawyer said the employer had “singled out” Colin because other employees who had made sexist
remarks were not suspended. He argued that Colin’s refusal to follow a direct order could not be seen as
a culminating incident because it happened once and was not part of a pattern of behaviour. The lawyer
claimed that the supervisor had been provocative when he ordered Colin to do work which was not part
of his regular duties.
Colin stated he had participated in the group accused of making sexist remarks but said they were
joking and had done no harm. He also said he had refused the supervisor’s order because he had other
work which was pressing.
Adjudicator’s Decision
The adjudicator found Colin’s dismissal justied. He had been subject to a system of progressive
discipline and, in addition to his suspensions, he had received many verbal and written warnings
concerning his interpersonal skills. The rm provided him with opportunity and training to improve,
buthe did not. He pointed out that Colin had been suspended for sexist remarks because he was
theleader of the group. While others had admitted their actions and felt regret for them, Colin continued
todeny that he had done anything wrong. Finally, in refusing to obey the order of his supervisor,
Colinhad provided the culminating incident which led to his dismissal.
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Case 6
Violation of company rules. Culminating incident. Special issues:
Progressive discipline system. Appraisals show improvement
after every disciplinary action taken.
Bob Saunders, a driver for an interprovincial trucking rm, had been dismissed after four years. In the letter
of dismissal, the employer stated that Bob had violated company rules many times and the culminating
incident was an act of insubordination.
Bob led a written complaint with the Labour Program a week later. He claimed he had been red
without cause and without any notice or warning.
The inspector met with the manager of the rm who provided well documented records which showed
Bob had been disciplined frequently for misconduct, including breaking the rm’s rules and regulations
and for insubordination. Most had happened in the rst two years of his employment with the rm. Recent
appraisals by his direct supervisors had noted improvement in Bob’s attitude and work performance.
After reviewing the le, the inspector advised the employer that Bob’s improved record during the last
two years showed that he had responded well to progressive discipline. This would make it difcult
toargue that Bob’s refusal to obey an order was a culminating incident.
Outcome
The employer later advised the inspector that he would reinstate Bob but only if Bob was willing to
goonprobation for a year. Bob agreed to the manager’s terms and was back at work two weeks later.
IV. Major Misconduct Resulting in Instant Dismissal
Some offences are grounds for immediate or instant dismissal rather than progressive discipline.
Theseoffences include gross misconduct such as theft or falsication of records, wilful destruction
ofanemployer’s property, or endangering the safety of fellow employees through incompetence
ornegligence.
Employees have also been dismissed for activities which place them in conict of interest, such as
setting up a business that competes directly with their employer. Instant dismissal can also be justied
for actions outside the work place. This may include involvement in criminal activity that reects badly
onthe employer or damages, beyond repair, the employer’s trust in the employee.
Misconduct that may justify instant dismissal differs from one situation or industry to another.
Whatmaybe a major offence in one type of business may not be considered as serious in another.
Forexample, a criminal conviction for theft may not be seen as seriously by an industrial employer
asitwould by a nancial institution. The falsication of production records is considered more serious
insituations where productivity bonuses are paid to employees. Drinking on the job or coming to work
intoxicated ismost serious when the employee’s actions could endanger the safety of others.
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The seriousness of any offence also depends on the employee’s level of responsibility and the loss incurred
by the employer as a result of the employee’s action. Therefore, in deciding whether the employer was
justied in immediately dismissing the complainant, adjudicators under the Canada Labour Code must
rst determine the seriousness of the misconduct.
Examples of this kind of situation are given in cases 7 and 8.
Case 7
Misappropriation of customer’s funds. Falsifying employer’s records.
Failure to report irregularities.
Lise Roy and Val Nelson worked for a nancial institution. Lise was the chief administrative ofcer
andVal was her assistant.
Both women had worked for their employer for about eight years when they were dismissed for
misappropriation of customer funds, falsifying records and failure to report irregularities. The two admitted
they had been part of a scheme to cover tellers’ shortages from the funds of a particular customer.
However they believed that they were being unfairly treated because the tellers involved had received
only written warnings. They wrote separately to the Labour Program claiming unjust dismissal.
In both cases the employer was unwilling to negotiate and an adjudicator was appointed.
The facts were clear. There had been a chronic problem with shortages in teller’s cash balances.
A“slushfund” under Lise’s control was set up to cover shortages tellers might have. While Lise controlled
that fund, Val actively participated in running it. This continued for several months, until the manager
uncovered the scheme. Following a thorough investigation, Lise and Val were red.
In both cases, it was argued that the dismissals were excessively severe compared with the written
warnings received by the tellers involved. The employer argued that the tellers were only following the
instructions of their two superiors. The disciplinary action taken against Lise and Val was stiffer because
they had set up the fund and had violated the trust the employer placed in them as supervisors.
Adjudicator’s Decision
The adjudicator dealt with each case separately. It was decided that Lise’s dismissal was just. She had
initiated the plan and was the senior person involved. The adjudicator also said that Lise showed “little
appreciation for the seriousness of the offence she had committed”. Her actions were so destructive
tothe employment relationship that the employer had no alternative but to dismiss her.
The adjudicator found that Val had been unjustly dismissed because she had been intimidated by Lise into
participating in the scheme. Furthermore, Val had co-operated in the employer’s investigation and admitted
her wrongdoing. Her penalty was changed from dismissal to a three month suspension without pay.
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Case 8
Loan-sharking. Criminal behaviour. Special Issues: Private life vs.
work misconduct. Damaged employer’s image. Conflict of interest.
Summary dismissal.
An employee of a large transportation company for 25 years, Ken Taylor was a middle manager when he
was arrested by police for loan sharking. He was found guilty under the Criminal Code and ned $2,000.
His employer then dismissed him. Ken had been loan-sharking with several other employees and some
of the group’s “clients” were also company employees.
After his arrest it was discovered that Ken had falsied employee records and passed condential
information about employees to people outside the company.
Ken wrote to the Labour Program claiming he had been unjustly dismissed. He said that his association
with the group had ended several months before he was arrested. He believed that because of his excellent
work record, progressive discipline should have been applied. As well, he thought the company had red
him in response to pressure from employees who wanted to get back at him.
The employer argued that Ken had admitted his criminal actions. Although they happened outside
working hours, those actions conicted directly with his responsibilities in the organization. During the
internal investigation, Ken had not been co-operative or honest. The employer said the trust required
inthe employer-employee relationship was destroyed and Ken had been dismissed.
Adjudicator’s Decision
Ken’s criminal activity was found to be related to the work place because it involved his co-workers.
Hehad also passed on condential information to people outside the work place for his own personal gain.
The adjudicator ruled that his dismissal was fully justied.
V. Aggravating and Mitigating Factors Considered
by Adjudicators
Whether a dismissal results from a series of minor infractions or a major offence, it is generally accepted
that there are two types of facts, aside from the strict facts of the case, that play a role in determining
theappropriate disciplinary action, especially when an action as serious as dismissal is being considered.
Adjudicators refer to “aggravating” and “mitigating” factors to determine the type and severity of
disciplinary action appropriate for the offence, as well as whether or not the dismissal is just. These elements
are taken into consideration when adjudicators evaluate the seriousness of the offence and the corrective
measures imposed by the employer. For example, the fact that the misconduct was an isolated and
unpremeditated act may mitigate the seriousness of the offence. On the other hand, the fact that
theoffence had been planned will be considered as an aggravating factor.
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Many aggravating and mitigating circumstances have been taken into account by adjudicators to determine
whether the disciplinary action taken was appropriate for the offence committed and whether dismissal
was justied for that infraction.
The following factors have been considered by adjudicators:
Aggravating Factors Mitigating Factors
• Misconduct was intentional and premeditated. • Misconduct was beyond control or dependent
onother factors such as provocation.
• Employee refuses to accept responsibility
forhisor her actions.
• Misconduct was committed on the spur of
the moment or as a result of an emotional
impulse.
• Misconduct is unacceptable for the type
ofbusiness involved.
• There was a lax and permissive atmosphere
atthe work place.
• Behaviour irreparably broke the bond of trust
that is essential in an employer-employee
relationship.
• The offence was not committed during
working hours.
• Employee was fully aware that such
misconduct was unacceptable.
• The misconduct did not damage the
employer’s image.
• There was a culminating incident. • The employer had condoned the employee’s
behaviour in the past.
• Employee did not improve after corrective
actiontaken by the employer.
• The penalty imposed was inappropriate
fortheoffence committed.
• The employee admitted wrongdoing.
• The previous disciplinary and work record
ofthe employee was good.
• The employer’s rules of conduct had not been
uniformly applied.
• The company had not allowed the employee
to explain his or her actions.
• Employee’s actions were as a result of an
error, a misunderstanding or a lack of training.
• Allegations were not known to the employee.
Infraction was an isolated incident.
Examples of this kind of situation are given in Cases 9 and 10.
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Case 9
Misappropriation of customer’s funds. Dishonesty. Special issues:
Aggravating factors. Concept of honesty and trustworthiness
in employment relationship.
Mark White had been a driver for an interprovincial courier for ten years when he was dismissed for
misappropriating a customer’s funds. He felt that dismissal was too harsh a penalty and led an unjust
dismissal complaint with the Labour Program.
The parties failed to reach a settlement and the complainant requested the appointment of an adjudicator.
An adjudicator was appointed.
The employer’s evidence showed that Mark had not handed in payments totalling $45.00 that he had
received from customers, as required by company policy. Every employee knew about this policy and in
similar cases of theft the penalty had been dismissal. The employer held that the policy of dismissal was
justied by the importance of the company’s integrity, the sporadic nature of courier supervision, the values
of items entrusted to drivers, and the image of trustworthiness the employer had to maintain.
The complainant admitted that he had received the payments and had offered to pay back the employer.
Considering his age (58 years), and a theft of only $45.00, he suggested that a lesser penalty would have
been more appropriate.
Adjudicator’s Decision
After hearing the evidence, the adjudicator commented that dismissal is no longer an automatic penalty
in cases of dishonesty. In this case, when employee integrity was an absolute requirement, this type
ofmisconduct is an aggravating factor.
The adjudicator accepted the employer’s version of the facts and considered the following factors:
a) the offences were committed over a short period of time;
b) the complainant did not reimburse the money despite having
severalopportunitiestodoso;and
c) he did not admit his offences at the hearing.
Given the gravity of the offence, the complainant’s age was not a mitigating factor. The adjudicator
concluded that the dismissal was justied.
Labour Program
16
Case 10
Incompetence. Special Issues: Highly competent before promotion.
Application of corrective discipline approach. Personality conflict.
Mitigating factors.
Jean Scott worked at a branch of a nancial institution for ve years. In annual performance appraisals
her work was rated as competent for three years and highly competent in her fourth year. She was promoted
to head teller. During the rst four years her appraisals also noted various areas for improvement such as
her attitude toward her work, timeliness, and balancing of her cash. The appraisal showed that Jean made
an effort to respond to these suggestions.
After nine months as head teller, Jean’s immediate supervisor rated her performance as “low competent”.
The written appraisal was critical of Jean’s attitude and her lack of co-operation with her peers and her
supervisor. It indicated that demotion was being considered.
A letter from her manager said that she was being placed on “corrective supervision status”. This meant
work attendance, cash balances, and her “adherence to other work place procedures” would be closely
scrutinized. If, at the end of two months, her performance was not rated as “competent”, Jean would
bedemoted.
About ve weeks into the “corrective supervision” period, Jean had an unexplained cash shortage
of$2,000. After an internal investigation by the employer, Jean was dismissed because of her “overall job
performance”. She submitted a complaint to the Labour Program saying she had been unjustly dismissed.
When the parties could not reach an agreement, an adjudicator was appointed.
Adjudicator’s Decision
After hearing several witnesses, the adjudicator pointed to a number of mitigating factors. First, there
was no evidence that Jean’s cash shortage was anything more than a gross error on her part. Second,
Jean had an obvious personality clash with her immediate supervisor which may have accounted for her
poor work attitude. Third, the employer had placed Jean under “corrective supervision” for two months,
and had stated that she would be demoted if her performance was not rated competent. Instead, Jean
had been red six weeks into the period. Fourth, Jean had a good work record and had responded
tosuggestions made by her superiors in the past.
In light of the above circumstances, the adjudicator found Jean’s dismissal to be unjust. Jean was reinstated
but she was demoted to teller.
Labour Program
17
Mitigation of damages by employee
It is the complainant’s obligation to reduce his or her losses. If the dismissed person did not make
reasonable efforts to nd other employment while awaiting the adjudicator’s decision, the adjudicator
may reduce the size of the award. If, on the other hand, the unjust dismissal unnecessarily imposed
asevere hardship on the employee, the award may be higher than normal.
Criteria used by adjudicators to arrive at remedy
(amount of award)
The following elements are taken into consideration when adjudicators calculate the amount
complainants are entitled to:
• type of position held, experience and responsibilities;
• age of complainant;
• length of service with employer;
• degree of attempt by employee to mitigate losses;
• affect of dismissal on complainant (unnecessary hardship);
• serious drawbacks dismissal would have on career development;
• aggravating factors contributed by the employee;
• mitigating factors contributed by the employee;
• prospect of alternative employment (availability of work);
• harsh and unfair manner in which dismissal took place;
• dedication, perseverance and hard work by employee; and
• employee’s clean disciplinary record.
An example is given in Case 11.
Labour Program
18
Case 11
Lack of interpersonal skills. Unsatisfactory work performance. Special issues:
Mitigation attempts by complainant. Employer’s management techniques.
Henry Journeau had worked for the same employer for six years when he was transferred to an
administrative position in a regional ofce. Henry did not like the transfer since he saw the move as
ademotion. His superiors, however, believed Henry’s poor interpersonal skills were a weakness that
limited his potential. The new position offered an ideal opportunity for Henry to correct that weakness.
From the beginning, Henry had difculty in his new job. Staff were quickly alienated by Henry’s
insensitive handling of their concerns and his intimidating manner. He adopted a practice of writing
notesto subordinates, some located only a few feet from his desk, addressing them by their job titles
rather than using their names.
Henry’s supervisors warned him, both in interviews and in writing, that he would be suspended or
demoted if his approach to supervision was not improved. Henry refused to accept the validity of any
ofthe complaints. A few days after receiving the last warning, Henry was dismissed. The employer had
decided there was no chance of Henry improving his performance.
Adjudicator’s Decision
The adjudicator found Henry’s dismissal unjust. Although Henry’s work performance could have justied
dismissal, the employer’s management techniques had been faulty in three major areas. First, Henry’s
immediate supervisor was not supportive. In fact, some of the supervisor’s actions had been an obstacle
to Henry improving his performance. Second, Henry was told that continued poor performance would
lead to suspension or demotion, not dismissal. Third, no “culminating incident” occurred in the several
days preceding the dismissal.
While Henry’s dismissal had been unjust, there were considerations which reduced the compensation
due him since Henry still refused to admit that he was ever at fault. Henry’s attitude was “everyone else
is wrong and I am always right”. Furthermore, Henry had done little to nd another job after his dismissal.
The adjudicator ordered the employer to pay Henry seven (7) months’ salary and provide services
ofacareer counsellor to a maximum of $1,500.
Conclusion
In the material you have just read, we have covered a range of situations in order to answer questions
from both employers and employees on this topic. These cases demonstrate that an adjudicator has wide
latitude in providing a remedy when dismissals are found to be unjust.
Labour Program
19
Overview of the Unjust Dismissal Process
Part III of the Canada Labour Code
Written complaint is
received and reviewed
by Inspector
Adjudicator’s decision
Investigation
by Inspector
Attempt to settle
complaint
Complaint inadmissible Complaint admissible
Just Unjust
No further action
Adjudicator’s order
implemented
Request for written
statement of reasons if
not already available
Settlement No Settlement
Employee’s written request
for adjudication
Adjudicator’s order
not implemented
Filing of order
in Federal Court
Report to Minister
of Labour
Appointment
of adjudicator denied
Appointment
of adjudicator
Labour Program
20
This publication is provided for information only. For interpretation and application purposes, please refer
to Part III of the Canada Labour Code (Labour Standards), the Canada Labour Standards Regulations,
and relevant amendments.
Please note that Part 4 of the Department of Employment and Social Development Act provides
thatpersonal information may be made available to individuals upon their request in writing.
Information about these provisions may be obtained from the Labour Program by calling toll free
at1-800-641-4049, by visiting the website at https://www.canada.ca/en/employment-social-
development/programs/employment-standards/federal-standards.html or by submitting
yourquestions or comments through the Labour Program Contact Us form.
Information on Labour Standards -
8 UNJUST DISMISSAL
This publication is available for download at
canada.ca/publicentre-ESDC.
It is also available upon request in multiple formats
(large print, Braille, MP3, audio CD, e-text CD, DAISY,
or Accessible PDF), by contacting 1 800 O-Canada
(1-800-622-6232). By teletypewriter (TTY),
call 1-800-926-9105.
©Her Majesty the Queen in Right of Canada, 2018
For information regarding reproduction rights:
droitdauteur[email protected].
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ISBN: 978-0-660-26715-9
ESDC
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