Employee Complaints in Federally Regulated Operations

Authors: Tom Richards, Amy Gibson

Important amendments have been made to the Canada Labour Code (the “Code”) regarding the mechanisms and avenues through which federally regulated employees may make complaints against their employers.

1. Employer Reprisals

A complaint mechanism has been added to the Code relating to employer reprisals. This new mechanism is currently in force.

Employees who feel that an employer has taken reprisals against them may write to the Canada Industrial Relations Board (the “Board”) to make a complaint.

These complaints encompass scenarios in which an employee believes that her employer has dismissed, suspended, laid off or demoted her, imposed a financial or other penalty on her, or otherwise taken a disciplinary action against her for:

• Having made a complaint under Part III of Code (e.g. penalizing an employee for being pregnant or properly taken sick leave);
• Providing employment information or assistance to help facilitate an inspection (e.g. providing information regarding an employee’s wages, hours of work, annual vacation or conditions of work to an inspector);
• Testifying or preparing to testify in a proceeding or inquiry pursuant to Part III (e.g. for providing testimony regarding the improper payment of wages);
• Seeking to exercise a right under Part III (e.g. seeking to take vacation time to which an employee is statutorily entitled).

Generally speaking, an employee must make a complaint to the Board no later than 90 days after the day on which the employee knew or ought to have known about the circumstances giving rise to the complaint.

An employee who has been dismissed is not permitted to make a reprisal complaint if she has already made an unjust dismissal complaint pursuant to s. 240 of the Code that has not been withdrawn.

The burden of proof lies with the employer to prove that the actions complained of do not constitute a reprisal as alleged.

Once the complaint is received, the Board has authority to:

1. Suspend the complaint if the Board is not satisfied the employee has taken the required measures before the complaint was made;
2. Reject the complaint if the Board is satisfied that:
   1. The complaint is not within its jurisdiction;
   2. The complaint is frivolous, vexatious or not made in good faith;
   3. The complaint has been settled between the employer and the employee;
   4. There are other means available to the employee to resolve the subject matter of the complaint that the Board thinks the employee should pursue;
   5. The subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator;
   6. In respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject matter of the complaint and provides a third-party dispute resolution process (i.e. a grievance process); or
   7. If the complaint was suspended and the Board provided measures to the employee to complete prior to the suspension being lifted, where those specified measures were not taken within the required time period.

In the event the Board determines that a reprisal complaint is justified, the Board may order the employer to cease engaging in or to rescind the reprisal. Depending on the situation, the Board may also require the employer to:

1. Permit the employee who has made the complaint to return to the duties of her employment;
2. Reinstate the employee;
3. Pay to the employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would (if not for the reprisal) have been paid by the employer to the employee;
4. Compensate the employee an amount not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer; and
5. Do any other thing that the Board considers fair to remedy or counteract any consequence of the reprisal.

2. Unjust Dismissal Complaints

Currently, a non-unionized employee who has completed at least 12 consecutive months of continuous employment with the employer at the time of termination may make a written complaint to an inspector alleging that their dismissal was unjust. That inspector will attempt to assist the parties to settle the complaint. If the inspector cannot settle the complaint, she will typically refer the complaint to an adjudicator for a hearing on the matter.

The employer bears the burden of proving that the employee was terminated for just cause at an unjust dismissal hearing.

Where a complaint is substantiated, the adjudicator has broad discretion with respect to remedy, including the ability to order compensation for any lost wages experienced by the employee, reinstatement of employment and any other similar action to remedy or counteract any consequence of the dismissal.

However, amendments to the Code, which are not yet in force, will change this procedure.

Once implemented, these amendments will transfer all the powers of adjudicators regarding complaints for unjust dismissals to the Board. The transfer of unjust dismissal complaint hearings from local adjudicators to the Board will have an impact on the practical and logistical considerations of such a hearing. As these changes are not yet in force, it is unclear what impacts this change will have.

Both complaint mechanisms provide for the opportunity for substantial remedies for federally regulated employees. It is important to note that it does not cost employees anything to make a complaint and does not require that they obtain legal counsel.

As a result, it is highly recommended that employers seek legal advice early in the process when receiving a reprisal or unjust dismissal complaint to ensure that steps are being taken to adequately protect their interests. Contact one of our labour and employment team members today.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.