Canada Labour Code (R.S.C., 1985, c. L-2)

DIVISION XIVUnjust Dismissal

Marginal note:Complaint

• 240 (1) Subject to subsections (2) and 242(3.1), a person who has been dismissed and considers the dismissal to be unjust may make a complaint in writing to the Head if the employee

  • (a) has completed 12 consecutive months of continuous employment by an employer; and

  • (b) is not a member of a group of employees subject to a collective agreement.

• Marginal note:For greater certainty

  (1.01) For greater certainty, the fact that an employer complies with Divisions X and XI does not

  • (a) affect the employee’s rights under this Division; or

  • (b) prevent the Board from deciding under paragraph 242(3)(a) that the dismissal was unjust or from making any order under subsection 242(4), including a reinstatement order.

• Marginal note:Limitation

  (1.1) A person shall not make a complaint under subsection (1) if they have made a complaint that is based on substantially the same facts under either subsection 246.1(1) or 247.99(1), unless that complaint has been withdrawn.

• Marginal note:Time for making complaint

  (2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.

• Marginal note:Extension of time

  (3) The Head may extend the period set out in subsection (2)

  • (a) if the Head is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority; or

  • (b) in any circumstances that are prescribed by regulation.

Marginal note:Reasons for dismissal

• 241 (1) If an employer dismisses a person described in subsection 240(1), the person who was dismissed or the Head may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request must provide the person who made the request with such a statement within 15 days after the request is made.

• Marginal note:Head to assist parties

  (2) On receipt of a complaint made under subsection 240(1), the Head must endeavour to assist the parties to the complaint to settle the complaint.

• Marginal note:Complaint not settled within reasonable time

  (3) If a complaint is not settled under subsection (2) within the period that the Head considers to be reasonable in the circumstances, the Head must, on the written request of the person who made the complaint that the complaint be referred to the Board, deliver to the Board the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided under subsection (1) and any other statements or documents that the Head has that relate to the complaint.

• Marginal note:Notice

  (4) If the person who made the complaint does not reply to a written communication from the Head within a period that the Head considers to be reasonable in the circumstances and a period of at least 30 days, or any longer period that may be prescribed by regulation, have elapsed from the day on which the complaint was made, the Head may give written notice to the person who made the complaint that they have the period of 30 days, or any longer period that may be prescribed by regulation, set out in the notice to make a written request that the complaint be referred to the Board.

• Marginal note:Time limit

  (5) Subject to the regulations, if the person who made the complaint does not, within the period set out in the notice, make a written request that the complaint be referred to the Board, the Head may deem the complaint to be withdrawn.

Marginal note:Suspension of complaint

• 241.1 (1) If the Board is satisfied that the complainant must take measures before the Board may continue to deal with the complaint referred to it under subsection 241(3), it may, at any time, suspend consideration of the complaint, in whole or in part.

• Marginal note:Notice

  (2) If the Board suspends consideration of a complaint, the Board shall notify the complainant in writing and specify in the notice

  • (a) the measures that the complainant must take; and

  • (b) the period within which they must take those measures.

• Marginal note:End of suspension

  (3) The suspension ends when, in the Board’s opinion, the measures specified in the notice have been taken.

Marginal note:Rejection of complaint

• 241.2 (1) The Board may reject a complaint referred to it under subsection 241(3), in whole or in part,

  • (a) if the Board is satisfied that

    • (i) the complaint is not within its jurisdiction,

    • (ii) the complaint is frivolous, vexatious or not made in good faith,

    • (iii) the complaint has been settled in writing between the employer and the complainant,

    • (iv) there are other means available to the complainant to resolve the subject matter of the complaint that the Board considers should be pursued, or

    • (v) the subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator; or

  • (b) if consideration of the complaint was suspended under subsection 241.1(1) and if, in the Board’s opinion, the measures specified in the notice under subsection 241.1(2) were not taken within the specified period.

• Marginal note:Notice of rejection of complaint

  (2) If the Board rejects a complaint, it shall notify the complainant in writing, with reasons.

• 242 (1) [Repealed, 2017, c. 20, s. 354]

• (2) [Repealed, 2017, c. 20, s. 354]

• Marginal note:Decision of the Board

  (3) Subject to subsection (3.1), the Board, after a complaint has been referred to it, shall

  • (a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

  • (b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

• Marginal note:Limitation on complaints

  (3.1) No complaint shall be considered by the Board under subsection (3) in respect of a person if

  • (a) that person has been laid off because of lack of work or because of the discontinuance of a function; or

  • (b) a procedure for redress has been provided under Part I or Part II of this Act or under any other Act of Parliament.

• Marginal note:Unjust dismissal

  (4) If the Board decides under subsection (3) that a person has been unjustly dismissed, the Board may, by order, require the employer who dismissed the person to

  • (a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

  • (b) reinstate the person in his employ; and

  • (c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

• Marginal note:Payments under subsection 230(1) or 235(1)

  (5) For greater certainty, in making an order for compensation under subsection (4) the Board may, among other things, take into account any amount paid by the employer to the employee under subsection 230(1) or 235(1).

Marginal note:Order final

• 243 (1) Every order of the Board is final and shall not be questioned or reviewed in any court.

• Marginal note:No review by certiorari, etc.

  (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under section 242.

Marginal note:Enforcement of orders

• 244 (1) Any person affected by an order of the Board under subsection 242(4), or the Head on the request of such a person, may, after 14 days from the day on which the order is made, or from the day provided in the order for compliance, whichever is later, file in the Federal Court a copy of the order, exclusive of reasons.

• Marginal note:Registration

  (2) On filing in the Federal Court under subsection (1), an order of the Board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken in respect of it, as if the order were a judgment obtained in that Court.

Marginal note:Regulations

245 For the purposes of this Division, the Governor in Council may make regulations

• (a) defining the absences from employment that shall be deemed not to have interrupted continuity of employment;

• (b) prescribing circumstances for the purposes of paragraph 240(3)(b);

• (c) prescribing periods for the purposes of subsection 241(4);

• (d) prescribing the circumstances under which a complaint is not to be deemed to be withdrawn under subsection 241(5); and

• (e) prescribing the conditions that are to be met before a complaint may be deemed to be withdrawn under subsection 241(5).

Marginal note:Civil remedy

• 246 (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.

• Marginal note:Application of section 189

  (2) Section 189 applies for the purposes of this Division.

DIVISION XIV.1Complaints Relating to Reprisals

Marginal note:Complaint to Board

• 246.1 (1) Any employee may make a complaint in writing to the Board if they believe that their employer has taken any of the following reprisals against them:

  • (a) the employer has taken action against the employee in contravention of subsection 173.01(5), 174.1(4) or 177.1(7) or of section 208, 209.3, 238, 239, 239.1 or 247.96;

  • (a.1) [Repealed, 2021, c. 26, s. 25]

  • (b) dismissing, suspending, laying off, or demoting the employee, imposing a financial or other penalty on the employee, or otherwise taking any disciplinary action against the employee, because the employee

    • (i) has made a complaint under this Part, other than a complaint under section 240,

    • (ii) has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee to the Head or provided any other assistance to the Minister or the Head in the exercise or performance of the Minister’s or the Head’s powers, duties and functions under this Part

    • (ii.1) has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee or provided any other assistance to an external adjudicator or a member of the Board in the exercise or performance, in accordance with subsections 12.001(2) or 14(5), of the powers, duties or functions conferred on the Board by this Part,

    • (iii) has testified or is about to testify in a proceeding taken or an inquiry held under this Part, or

    • (iv) has exercised, or sought to exercise, any right conferred on the employee by this Part;

  • (c) taking into account the fact that the employee has taken any of the actions referred to in subparagraphs (b)(i) to (iv) in any decision with respect to the promotion or training of the employee; or

  • (d) threatening to take any of the reprisals referred to in paragraph (b) or (c).

• Marginal note:For greater certainty

  (1.1) For greater certainty, the fact that an employer complies with Divisions X and XI does not

  • (a) affect the employee’s rights under this Division; or

  • (b) prevent the Board from deciding under section 246.4 that the employer has taken a reprisal against them or from making any order under that section, including a reinstatement order.

• Marginal note:Limitation

  (2) An employee shall not make a complaint under subsection (1) if they have made a complaint that is based on substantially the same facts under either subsection 240(1) or 247.99(1), unless that complaint has been withdrawn.

• Marginal note:Time for making complaint

  (3) A complaint referred to in subsection (1) shall be made to the Board not later than 90 days after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint.

• Marginal note:Burden of proof

  (4) A complaint made under subsection (1) is itself evidence that the reprisal was actually taken and, if a party to the complaint proceedings alleges that the reprisal was not taken, the burden of proof is on that party.