It is a common aphorism that any employee can be fired at any time for any reason, so long as the employer gives reasonable notice. This is the state of the common law in Ontario, meaning that once your job is lost, no court will give it back to you.
But that is not the case for the Human Rights Tribunal, the Labour Relations Board, or an adjudicator appointed under the Canada Labour Code. These administrative tribunals have been authorized by statute to exercise broad powers, including the power to reinstate a dismissed employee to their former position.
Reinstatement, however, is still a tall order - it is regarded as an “extraordinary remedy” that is only awarded where, in the adjudicator’s opinion, the employment relationship is still viable. But it can be a huge win if you are successful. In addition to getting your job back, you will also usually receive “back pay” for the entire time you were off work.
For this reason, many employers are fearful at the prospect of reinstatement. This can provide powerful leverage for the employee to negotiate a severance package.
Under what kind of circumstances could an employee seek reinstatement?
1. If your employment is federally regulated
If you work in a federally-regulated industry, like telecommunications, banks, or railways, your employment is governed by the Canada Labour Code (“CLC”).
Under the CLC, non-managerial employees who are fired have a right to seek reinstatement under most circumstances. If you qualify, you can bring a complaint before an adjudicator and seek to be reinstated with back pay. Alternatively, you may simply be awarded lost wages, similar to severance pay. Note: Generally, this does not apply to unionized employees who would grieve under an applicable collective agreement.
2. If you were terminated in violation of the Human Rights Code
If your employer’s decision to terminate you was even slightly motivated by prohibited discrimination under human rights legislation – such as age, race, religion, gender, sexual orientation, or disability – you can apply to the Human Rights Tribunal for reinstatement, lost wages, and general damages for injury to your dignity, feelings, and self-respect.
3. If you were fired in retaliation for a workplace complaint
In Ontario, both the Occupational Health and Safety Act and the Employment Standards Act contain anti-reprisal provisions, which prohibit employers from terminating employees for having exercised any of their rights under either Act. So, for instance, if your employer fires you for insisting on your right to overtime pay, you could apply to the Labour Relations Board for reinstatement, back pay, and general damages.