legal words
Without Cause Dismissals in
Federally Regulated Workplaces
NOT SO FAST!
By Mark Repath
For almost 40 years, it had been an open question whether
federally regulated employers could be ordered to reinstate
an employee who had been dismissed without cause.
The confusion came from the interpretation of Division XIV
of the Canada Labour Code (ss. 240-246) and whether terminating
an employee “without cause” was equivalent to an “unjust dismissal”
under the legislation (which governs most federal employers).
For years, employees argued that the two terms were interchangeable,
for the obvious reason that a finding of an unjust
dismissal would entitle a dismissed employee to a broad range of
remedies under the Code, including, most importantly, reinstatement
with full back pay. Employers, on the other hand, argued
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that even if a termination was “without cause,” so long as appropriate
notice of termination or pay in lieu thereof was provided, then
a dismissal was not unjust.
Unfortunately, for employees and employers alike, adjudicators
appointed to determine unjust dismissal complaints under the
Code agreed with both interpretations, in ways that could not be
reconciled. There was little certainty in the state of the law and
therefore the risk to either party in commencing or responding to
an unjust dismissal complaint was difficult to measure. This caused
tremendous second-guessing by managers and HR professionals
employed with banks, railways, airlines and telecommunications
companies (among many other federally regulated employers) as
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