No. 15–Adjudication of Unjust Dismissal Complaints
Information Circular
The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
Important Note:
As a first step, you MUST file your complaint of unjust dismissal with the Labour Program of Employment and Social Development Canada (ESDC). Do not file your original complaint with the Canada Industrial Relations Board (the Board or the CIRB). For information about filing a complaint of unjust dismissal, please contact the Labour Program at 1-800-641-4049 or consult its Official website.
What is a complaint of unjust dismissal
Section 240 of the Canada Labour Code (the Code), Part III (Standard Hours, Wages, Vacations and Holidays), protects against unjust dismissal for federally regulated employees who have completed at least 12 months of continuous employment with the same employer and who are not covered by a collective agreement. This protection does not apply to managers.
If an employee believes that they have been unjustly dismissed from employment, they may file a complaint alleging unjust dismissal with ESDC’s Labour Program. The complaint must be filed within 90 days of the date of dismissal.
A person may not file a complaint alleging unjust dismissal if they have made either a reprisal complaint (section 246.1) or a genetic testing complaint (section 247.99) that is based on substantially the same facts, unless that other complaint has been withdrawn.
After a complaint of unjust dismissal is filed, a Labour Program inspector will try to help the parties (employee and employer) through mediation. The goal is to mediate the matter by supporting both parties to negotiate a settlement that is acceptable to them. The Labour Program inspector does not issue a decision or decide if a complaint is valid or justified. The majority of unjust dismissal complaints are resolved through this process.
If the complaint is not settled by the parties with the help of the Labour Program inspector, the complainant can request that their complaint be referred to the CIRB for adjudication. This request is made to the Labour Program by using the process outlined below.
Adjudication of Unjust Dismissal Complaints
If the complaint of unjust dismissal is not settled by both parties in a reasonable period of time, the Labour Program inspector will inform the parties in writing. If the complainant chooses to continue with the complaint, they will have to make a written request to have their complaint referred to the CIRB.
This request for adjudication must be made within 30 days of receiving the letter from the Labour Program. A Request for Adjudication–Unjust Dismissal Complaint Form will be provided to the complainant by the Labour Program. The complainant must complete this form and send it back to the Labour Program. The complainant must not send their request directly to the CIRB. It must be sent to the Labour Program. The Labour Program will send the complainant’s file to the CIRB for the next steps of the process.
What happens after the unjust dismissal complaint is referred to the CIRB for adjudication?
Acknowledgment Letter
When the CIRB receives the complainant’s request for adjudication and file from the Labour Program, the CIRB will send the complainant and the employer a letter acknowledging receipt of the Referral for Adjudication and will include a copy of all relevant documents. The letter will also inform the parties of the name and contact information of the CIRB Industrial Relations Officer (IRO) appointed to the complaint. The IRO is responsible for managing the file and assisting the parties in reaching a settlement. For more information on the role of the IRO, please consult the Board’s Information Circular No. 1–The Role of the Board’s Industrial Relations Officers.
Response and Reply
The respondent (employer) to the complaint will have 15 days from receipt of the acknowledgment letter to file a response. Upon receipt of a response, the complainant (employee) will have 10 days to file a reply.
The CIRB may refuse to consider any responses or replies received after the prescribed time limit.
Exchange of Documents
Pursuant to section 23 of the Canada Industrial Relations Board Regulations, 2012, parties must deliver to the other party/parties a copy of any response, reply or other document filed with the Board and advise the Board in writing of the time and manner of this delivery, which is called service. The manner of service includes delivery by fax, by courier or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the complaint.
Mediation Meeting
The IRO will communicate with the parties in order to arrange a mediation meeting to assist the parties in attempting to resolve the dispute. This mediation meeting is voluntary and the information acquired by the officer in the mediation process shall remain confidential and shall not be divulged to the Board.
Hearing
If the complaint is not resolved during mediation, it will be referred to the CIRB. The CIRB may, in its discretion, decide the matter without holding an oral hearing. If there is no oral hearing, the CIRB will decide the complaint based on the written submissions filed by the parties. It is therefore in the parties’ best interests to file complete, accurate and detailed submissions and include all relevant information and documents in support of their respective positions. If the CIRB decides to hold an oral hearing, it will inform the parties of the date and location of the hearing.
External Adjudicators
In the adjudication of unjust dismissal complaints, the Chairperson of the Board may appoint a member of the CIRB or an external adjudicator to hear and determine the complaint. Members of the CIRB and external adjudicators have all the powers, duties and functions conferred on the CIRB by the Code regarding any matter to which they have been appointed, and their orders and decisions are considered to be the Board’s orders and decisions.
Decision of the Board
The Board will notify the employee and the employer in writing of its decision, with reasons. A copy of the Board’s decision will also be provided to the Minister. All key decisions of the CIRB are published on its Official website.
What remedies can be ordered by the CIRB?
Where the Board finds the dismissal to be unjust, the employer may be ordered to reinstate the employee, pay compensation for lost wages or 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).