Employment Standards - Unjust Dismissal Complaints
Table of contents
What is an unjust dismissal?
An unjust dismissal is when an employer ends the employment of an employee for reasons that are unfair or wrong. The process described below only applies to employees and employers in federally regulated businesses. For a list of federally regulated industries, click here.
What do I do if I think I have been unjustly dismissed?
You can file a complaint with the Labour Program of Employment and Social Development Canada (the Labour Program). You must file the complaint within 90 calendar days of being dismissed. The Canada Industrial Relations Board (the Board) can only get involved after a Labour Affairs Officer from the Labour Program has tried to help you and your employer negotiate a settlement of the complaint. If you are unable to settle the complaint with the help of the Labour Affairs Officer, you can ask the Labour Program to send your complaint to the Board.
IMPORTANT: You cannot file an unjust dismissal complaint if you have already filed a reprisal complaint, or a genetic testing complaint based on the same facts as your unjust dismissal complaint. If you prefer to file an unjust dismissal complaint, you must first withdraw your reprisal or genetic testing complaint. Your unjust dismissal complaint still needs to be filed within 90 calendar days of your dismissal so you must be careful not to miss the filing deadlines.
ALSO IMPORTANT: If your unjust dismissal complaint is about a health and safety reprisal, you must file a health and safety reprisal complaint. For more information about health and safety reprisal complaints, click here.
ALSO IMPORTANT: If your unjust dismissal complaint is related to a human rights issue such as discrimination because of your race, religion, age, disability, or family status, it is important that you also file a complaint with the Canadian Human Rights Commission. This is important because the Board may not be able to deal with your unjust dismissal complaint that raises human rights issues without a referral letter from the Canadian Human Rights Commission. Click here for more information about the Canadian Human Rights Commission.
Who can file an unjust dismissal complaint with the Board?
- You can file an unjust dismissal complaint for the following reasons:
- You have been dismissed from employment in a federally regulated business.
- At the time of the dismissal, you had worked for the employer for at least 12 months.
- You were not a manager. Managers cannot claim unjust dismissal under the Canada Labour Code. If you are not sure whether you were a manager, err on the side of filing your complaint within the 90-day deadline.
- It has been less than 90 calendar days since you were dismissed. The 90-day deadline could be extended. If you need an extension, you must request one from the Labour Program and explain why you were unable to file on time. The Labour Program will decide whether to accept your complaint.
- You are not represented by a union.
- You have not filed a reprisal or a genetic testing complaint based on the same facts as your unjust dismissal claim or if you have, you have withdrawn it.
How do I file a complaint?
You must file your unjust dismissal complaint with the Labour Program of Employment and Social Development Canada.
You do this by filling out and submitting a complaint form to them. Please visit the Labour Program’s website for instructions on how and where to send it.
IMPORTANT: The Canada Industrial Relations Board cannot accept the complaint.
A Labour Affairs Officer of the Labour Program will help you try to settle your complaint. If your complaint is not settled with the assistance of the Labour Affairs Officer, you can ask the Labour Program to refer it to the Board.
For more information on the Labour Program complaint process, click here.
Who is involved?
The employee (you) – also referred to as the complainant.
The employer – also referred to as the respondent.
- The complainant and the respondent are often referred to together as the parties.
An Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.
A decision maker appointed by the Chairperson of the Canada Industrial Relations Board.
What happens after the unjust dismissal complaint is referred to the Board?
The Board will send the person or organization who made the complaint (the complainant) and the person or organization named in the complaint (the respondent) a letter confirming that it has received the complaint.
If either of these parties has hired a representative, such as a lawyer, the letter will be sent to the representative. It is the representative’s obligation to keep the person that they represent up to date.
The letter will:
- include your case file number;
- include a copy of all documents filed by the complainant; and
- tell you when you can file additional information and documents (submissions).
The letter will also include the name and contact information of the Board’s Industrial Relations Officer (IRO) who will assist the Board and the parties with the complaint.
The IRO will answer questions that the parties have and assists the parties to reach a settlement whenever possible.
The letter will also advise the person or organization that the complaint is against (the respondent) of:
- how much time they have to file a response to the complaint; and
- how much time the complainant will have to reply to any new facts and arguments that the respondent raises.
Normally, the Board gives the respondent 15 calendar days to file a response and the complainant 10 calendar days to file a reply. Sometimes the Board will shorten the deadlines for responding. Make sure you read the letter that you receive from the Board.
The response should clearly explain the respondent’s version of the facts to the Board. The response should also include any documents that the respondent has which the complainant did not file, and which are relevant to the complaint.
If you decide not to file a reply, you should write to the Board and tell it that you will not be filing one.
You do not need to file documents that the other party has already filed.
The parties are responsible for filing their arguments and documents on time.
If you need more time to file your submissions, you need to ask the Board to extend the deadline. The Board will want to know why you are late and need more time and will only give you more time if you have a good reason. The Board can refuse to consider any responses or replies that are filed late where an extension has not been given.
Can I be represented by someone else?
Yes, each party can be represented by the person of their choice.
The Board does not provide lawyers to assist parties.
The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.
What additional information does the Board need?
You do not need to send information to the Board that you previously sent to the Labour Program unless you notice that it is missing from the file that the Labour Program sent to the Board.
You should send any missing information or documents to the Board that you think would be helpful to your case. This could be documents that were created or received after the involvement of the Labour Program. If you do file additional information with the Board, you must also send it to the other party. When you file the information with the Board, you need to tell it how and when you sent it to the other party.
The information that you file must help the Board decide whether your dismissal was unjust and why. You should also file any documents that prove any losses that you have experienced due to the unjust termination. For example, this can include proof of your earnings when you were dismissed by the employer.
How do I file my documents, representations, or evidence?
All complaints, applications, responses, replies, and supporting documents are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.
Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.
When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.
Is the information in my file confidential?
Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public.
If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.
Will there be mediation?
Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
For more information on the mediation process, please click here.
Will there be a hearing?
Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing.
If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference.
For more information on the Board’s hearing process, please click here.
When will I get the decision?
The Board will notify you in writing of its decision.
The time that it takes the Board to issue a decision can vary depending on the complexity of the case.
All important decisions of the Board are published on the Decisions page.
You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after a complaint is filed.
What can the Board order?
If the Board agrees that your dismissal was unjust, it can:
- Order that you get your position back;
- Compensate you for any lost income; or,
- Order any other remedy to put you back in the position you were in before the dismissal.
Is the Board’s decision final?
The Board’s decisions are final and can only be reviewed in very specific circumstances.
- If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or
- If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.
In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.
Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.