Does a unionized employee have greater protection from dismissal than a nonunionized employee in the Canadian model?

The Supreme Court has ruled that non-unionized federally regulated workers are owed just cause when fired.

This past summer, the Supreme Court of Canada ruled that federally regulated employees cannot be fired without just cause even if they are not protected by a collective agreement. The Court’s decision eliminated the uncertainty in this area of the law by confirming the considerable protections afforded to these employees under federal legislation. In essence, some of the rights enjoyed by unionized workers were confirmed by the Court as intended to be extended to many non-unionized workers 1. The case is a major win for employees’ rights in Canada – and a considerable thorn for federal employers – and continues a trend in recent years whereby the Supreme Court has upheld and strengthened many labour rights.

Dismissed without cause

The case began when an employee at a federally regulated Crown corporation claimed that he was fired without cause because he blew the whistle on improper procurement practices at the company. Despite having worked at the company for four years and having a clean disciplinary record during that time, the employee was dismissed without explicit reasons in 2009 and given a large severance package. The company argued that giving notice or severance meant that it did not need to give cause for the employee’s dismissal, especially since the employee was not protected by a collective agreement.

Non-unionized workers

The Supreme Court had to determine whether amendments made to the Canada Labour Code in 1978 extended protections that are generally given to unionized workers to non-unionized ones as well. Those amendments provide federally regulated workers the right to complain to an adjudicator if they believe they have been dismissed without just cause. Federally regulated non-unionized workers include those in the banking, marine shipping, broadcasting, telephone, cable, and other industries, as well as at some Crown corporations.

The Court ruled that the Canada Labour Code amendments grant non-unionized federally regulated workers many of the same protections that unionized workers enjoy. The ruling means that federally regulated employers must show cause for the dismissal of an employee covered by the Canada Labour Code and that such employees may have the right to progressive discipline before being dismissed outright. It is important to note, as the Court does, that the ruling does not change the fact that federally regulated workers can still be dismissed for economic or restructuring reasons. Such dismissals do not entitle the employee to complain to an adjudicator.

The case is a significant win for employee rights in the country. It also comes on the heels of other Supreme Court cases in recent years that have upheld the rights of workers to unionize and to strike. It is also poses a challenge for federal employers by reducing the options they have to reduce the size of their workforce if so desired.

Labour and employment law

For those who feel they have been unfairly dismissed or have had their employment rights violated in some other way it is important to reach out to a labour and employment law lawyer. An experienced lawyer can help clients understand what rights they have and may be able to assist them in pursuing claims for damages. Likewise, labour and employment counsel can assist a federally regulated employer in complying with the lay of the land moving forward and navigating difficult terminations of employment.

1 Wilson v Atomic Energy of Canada Ltd., 2016 SCC 29