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HR ADVICE - 3 Ways Dismissed Employees Can Seek Reinstatement

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 a job is lost, no court will give it back.

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 loss if the employee is successful. In addition to getting his or her job back, the employee will usually receive “back pay” for the entire time they are off work.

For this reason, it is IMPORTANT to consider the pitfalls. Many employees will use the prospect of reinstatement to their benefit. This often provides employees with powerful leverage, to negotiate a larger severance package.

Under what kind of circumstances could an employee seek reinstatement?

1. If the employment relationship is federally regulated

If your work is in a federally-regulated industry, like trucking, telecommunications, banks, or railways, the employment relationship 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 an employee qualifies, he or she can bring a complaint before an adjudicator and seek to be reinstated with back pay. Alternatively, the employee may simply be awarded lost wages, similar to severance pay. Note: This does not apply to unionized employees who would grieve under an applicable collective agreement.

2. If the employee was terminated in violation of the Human Rights Code

If the decision to terminate an employee was even slightly motivated by prohibited discrimination under human rights legislation – such as age, race, religion, gender, sexual orientation, or disability – the employee can apply to the Human Rights Tribunal for reinstatement, lost wages, and general damages for injury to dignity, feelings, and self-respect.

3. If the employee was 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 an employer fires an employee for insisting on right to overtime pay, the employee could apply to the Labour Relations

Board for reinstatement, back pay, and general damages. Remember, in this area of law, the onus is upon the employer to prove its innocence. Put another way, the test is, “employer, you are guilty, unless you can prove otherwise”.