Why is my daycare closed if I have to go to work? Perhaps nowhere else in Ontario is the effect federalism felt more acutely than in Ottawa. According to statistics from the City of Ottawa, a full 18.2% of the city’s GDP is derived from the federal public service; second only to high tech.
Practically speaking, what this means is that on the third Monday of every February, federal public servants are expected to be at work while their daycares shutter their doors. So what gives?
Is a provincially regulated employer required to provide the reason that it terminated an employee’s employment if that employer does not allege that it had “just cause” to terminate the employment?
Conventional wisdom would be that the employer would not have to provide a reason. It is settled law that employers in Ontario may terminate the employment of any of its employees without cause subject only to two restraints: (1) the employer must provide the employee with reasonable notice of the termination; and (2) the reason for termination cannot be prohibited by law.
It was the second criterion, the reason for termination cannot be prohibited by law, that brought the issue of whether an employer had to provide its reason for the termination of employment into focus. According to a decision of Master Donald E. Short, Mezin v. HMQ, 2016 ONSC 5171, if an employee alleges that his employment was terminated in contravention of the provisions of the Human Rights Code, then the employer must provide particulars of its denial of such allegations.
Do federally regulated employers require legal “just cause” to terminate the employment of non-unionized employees employed for less than twelve consecutive months, e.g. those employees “on probation”? The question is not an academic one, but rather one certain to have a very real impact on the lives of those employed in the federally regulated sphere and the financial bottom lines of those who employ them.
The Supreme Court of Canada’s decision in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII), which was released July 14, 2016, finally resolved the debate concerning whether federally regulated employers require legal just cause to terminate the employment of non-unionized employees employed for more than twelve consecutive months: yes they do. However, that decision left unanswered the question of whether such employers also require just cause to terminate the employment of employees employed for a shorter period of time.
Although I must confess to having not researched this issue fully, such that this post may generate a definitive answer from someone who has looked at the issue, for the reasons that follow, it is my sense that federally regulated employers do require legal “just cause” to terminate the employment of non-unionized employees employed for less than twelve consecutive months.
At the end of 2015, I proclaimed the Supreme Court of Canada’s decision to grant leave to appeal from a decision of the Federal Court of Appeal the most important decision to Canadian employment law of that year. (See Top Five Cases of Importance to Ontario Employment Law - 2015.) My reason for doing so was simple:
The Federal Court of Appeal’s decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 was unanimous: A federally regulated employer can dismiss an employee without cause. While that statement may sound obvious, given the provisions of section 240 of the Canada Labour Code the same was far from a given. Indeed, given the Supreme Court’s decision to hear the appeal I would suggest that it still is not.
It is the fact that the Supremes are willing to hear the appeal, which was unanimous, and which upheld a previous decision of the Federal Court suggests to me that the Supreme Court of Canada is not entirely certain that the Federal Court got it right.
Although I somewhat reserved my prediction on matters, it would turn out I was right: The Supremes did grant leave because they doubted the correctness of the Federal Court of Appeal's decision.
On July 14, 2016, the Supreme Court of Canada (“SCC”) laid down its decision in the case of Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29.
In doing so, the Supreme Court has finally settled years of debate among Canada’s employment lawyers as to whether non-unionized federally regulated employees can be let go without cause, with a resounding “No!”.
From time-to-time a decision will come along that will leave me not only confused, but frustrated. Wyllie v Larche, 2015 ONSC 4747 is one of those cases.
Yesterday, I wrote about the court’s decision not to award punitive damages in that case. With respect to that issue, the court decided that the employer’s refusal to pay the statutory minimum amount of severance to a dismissed employee was excused because the employer had offered the employee an extra $546.25 (gross of tax) to waive all of his rights. See: Failure to Pay Statutory Severance ‘Okay’ because Employer Offered to Do So.
In my earlier commentary I had written the following:
I have a number of issues with Justice Price’s decisions. Principally His Honour’s decision to award Mr. Wyllie no more than his five days of statutory severance and his decision to not award punitive damages.
I have already explained my concerns with respect to the punitive damages decision, this post examines the severance issue.
In a landmark decision, the Federal Court of Appeal has said that terminations without cause are not automatically “unjust” as defined by the terms of the Canada Labour Code. In “breaking the tie” between competing lines of jurisprudence, the Federal Court of Appeal in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (CanLII) has unequivocally said that the purpose of the “unjust dismissal” provisions of the Canada Labour Code is not to elevate non-unionized employees to the same status as those who are unionized. Put another way, there is no longer any security of employment under the Canada Labour Code. For those employees working in such industries, this is huge.
NOTE: This is a summary of a decision of the Federal Court of Appeal. This decision has since been overturned by the Supreme Court of Canada.
Did the Federal Court’s decision in Atomic Energy of Canada Limited v Wilson, 2013 FC 733 put an end to federally regulated employees’ complaints of unjust dismissal?
For the reasons that follow, I argue that it did not – although the decision did certainly curtail the opportunity for employees to complain of having been unjustly dismissed.
Is the right to be reinstated after pregnancy leave absolutely guaranteed? According to a recent decision from an adjudicator appointed under Part III of the Canada Labour Code, the answer is no.
(c) istock/davidmariuz
In an earlier post, I commented on the effect of O.Reg 288/01 on the doctrine of "frustration" with respect to employment contracts governed by the Ontario law. However, not all employees who work in Ontario are governed by the Ontario Employment Standards Act, 2000. However, some people working in Ontario are governed by the Canada Labour Code (the "CLC").
In an Ontario Labour Arbitration Award, Kingsway Transport v Teamsters, Local Union 91 (John Sears Grievance), 2012 CanLII 20111, Arbitrator Lorne Slotnick held that section 239.1 of the CLC forbade an employer from terminating the employment of an employee who had been on disability for 21 years.
