The authority to make laws in Canada is split between the federal and provincial governments. Generally speaking, the employment relationship of most Ontario workers is subject to provincial laws such as the Ontario Employment Standards Act, 2000. A limited number of Ontario employees, however, work in industries over which the federal government has jurisdiction, and consequently sets the law. The federal equivalent of the Employment Standards Act is the Canada Labour Code. Federal jurisdiction applies to many Ontario workers employed in the following industries:
- Air Transportation (inc. airlines);
- Radio and Television Broadcasting;
- Inter-provincial Railways; and
The Canada Labour Code
The Canada Labour Code ("CLC") sets out minimum standards with which federally-regulated employers must comply. Some of the basic terms and conditions set out in the CLC include:
Minimum Wage: The employer must pay all employees at least the minimum wage of the province in which they are working (In Ontario, the minimum wage as of October 1, 2016 is $11.40 per hour).
- Hours of Work: An employee's standard hours of work must not exceed 8 hours in a day, or 40 hours in a week.
- Public Holidays: The following are recognized as public, or general, holidays, for employees: New Year's Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day.
- Parental Leave: Every employee who has completed six (6) consecutive months of continuous employment with an employer is entitled to a leave of absence of up to 37 weeks to care for their new-born child. This leave must be taken within the 52-week period beginning on the day the child is born, or when the child comes into the actual care of the employee.
Employee Dismissal: Statutory Notice and Severance Pay
In addition to these protections, the CLC also sets out the minimum requirements with which employers must comply when dismissing an employee:
- Section 230(1) of the CLC requires that if an employee is dismissed, after he or she has completed at least 3 months of continuous employment, the employer must provide either two weeks' prior notice or pay in lieu thereof at the employee's regular rate of wages.
- Section 235(1) also requires that a dismissed employee (who has completed at least twelve months of continuous employment) must receive the greater of: two days' wages for each completed year of service; or five days wages at the employee's regular rate.
Wrongful Dismissal and Common Law Reasonable Notice
It is important to remember that the CLC only provides for minimum entitlements upon termination. Many employees are entitled to receive far more than this by virtue of their common law right to reasonable notice, or pay in lieu thereof. The failure of an employer to provide for reasonable notice will usually allow the affected employee to bring an action for wrongful dismissal, seeking damages for loss of employment income (including salary, benefits and any bonus payments).
The determination of an individual's entitlement to common law reasonable notice is done on a case-by-case basis, and takes into consideration a number of non-exhaustive factors:
- the worker's age;
- the worker's position;
- the worker's length of service;
- the availability of comparable replacement employment; and
- in the Ottawa area specifically, the ability to speak French
Click here to learn more about how reasonable notice applies in your severance situation.
Unjust Dismissal under the Canada Labour Code and Employee Reinstatement
Pursuant to Division XIV of the CLC, federally regulated employees that have been employed for at least twelve consecutive months in a non-unionized and non-managerial role may only be dismissed in one of three limited circumstances:
- for just cause (i.e. demonstrable serious misconduct);
- because of a lack of work; or
- because their role or function is discontinued
If you are a federally-regulated employee that fits these criteria and your dismissal does not fall within one of the three circumstances set out above, your dismissal will be considered "unjust". You will consequently have the right to seek reinstatement to your position by filing a complaint under section 240(1) of the CLC.
Should you wish to take this step, you must do so within 90 days of the date of your dismissal otherwise you will be out of time and unable to proceed in this manner.
There had been some confusion over the circumstances in which a federally-regulated employee may be dismissed. In 2016, however, the Supreme Court provided much-needed clarification. The Court confirmed in Wilson v. Atomic Energy of Canada Ltd. that qualifying federal employees may not be dismissed without cause. This decision is significant as it confirms the unique, pseudo-unionized protection that the CLC provides.
If you are a federally-regulated employee who has questions about your rights and how the CLC applies to your job, please contact us directly to speak with an employment lawyer: 613-238-4430 or firstname.lastname@example.org
Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and effective legal advice to employers and employees in Ottawa and across Ontario. To speak with an Ottawa employment lawyer, please contact us.