Non-Union Federally and Provincially Regulated Employees

Non-Union Federally and Provincially Regulated Employees

Who Is A Federally Regulated Employee?

A federally regulated employee is an employee that works for an employer that operates within the federal jurisdiction. If you work in one of the following industries you are likely a federally regulated employee:

  1. Banks,
  2. Marine Shipping,
  3. Ferry and Port Services,
  4. Postal and Courier Services,
  5. Radio and Television Broadcasting,
  6. Road Transportation (crossing Provincial and or International Borders),
  7. Air Transportation,
  8. Airports,
  9. Aerodromes, and
  10. Airlines.

What Is The Difference Between A Federally Regulated Employee And A Provincially Regulated Employee?

Employees who are Provincially regulated are governed by provincial legislation which includes the Employment Standards Code RSA 2000 and the Alberta Human Rights Act RSA 2000.

Federally regulated employees are governed by federal legislation which includes the Canada Labour Code RSC 1985 and the Canadian Human Rights Act RSC 1985.

There are similarities between the federal and provincial legislation noted above. However, it is important to be aware of the procedural and remedial differences.

Procedural Differences, Who Do I Make A Complaint To?

For instance, if you are a federal employee and are dealing with discrimination in the workplace, you make your complaint to the Canadian Human Rights Commission.

If you are a provincial employee and are dealing with discrimination in the workplace, you make your complaint to the Alberta Human Rights Commission.

If you are unsure how to proceed or what regulator you make your complaint to, you must speak with legal counsel right away. This is because there are strict timelines that could prevent the regulatory body from accepting your complaint.

Remedial Differences

As mentioned above, much of the provincial and federal legislation is similar, however, there are some key differences. One of the most important differences is when termination occurs for a federal employee vs a provincial employee.

Remedial Differences for Provincial Employees

A provincial employee dealing with termination without cause can utilize statutory minimums where an employer must provide a notice of termination or as “termination pay” as set out in the Employment Standards Code. Further, if there is no contractual removal of the common law, the provincial employee will utilize a common law notice or pay in lieu of said notice according to the Bardal factors. Often employers will offer an additional amount above the Employment Standards Code if the employee executes a release. If you are a provincial employee who is dealing with termination without cause, it is important to speak with a lawyer to determine if what you were offered is fair.

A provincial employee who is who is dealing with termination without cause, or constructive dismissal, without sufficient notice of the termination, is said to be dealing with wrongful dismissal.

Remedial Differences for Federal Employees

A federal employee has more protections than a provincial employee when it comes to a termination without cause (or constructive dismissal).

If a federal employee is dealing with termination without cause, or constructive dismissal, and the termination was not due to a shortage of work, then it is an unjust dismissal. This allows the federal employee to make a complaint for unjust dismissal. An unjust dismissal complaint provides the federal employee with unique remedies, compared to their provincial counterparts, which include reinstatement to their position, with costs, and the “make-whole” principle.

These additional protections for a federal employee, regarding termination, are in section 240-246 of the Canada Labour Code.

In Wilson v. Atomic Energy of Canadian Ltd. 2016 SCC 29 the Court reviewed the history and statutory framework of the applicable provisions of the Canada Labour Code and concluded that Parliament’s intent was to provide protections to non-union employees which are similar to those afforded to union employees. Madam Justice Abella further considered the remedial framework available to employees under Division XIV of the Canada Labour Code and observed that the remedies made available to federally regulated non-union employees reflect “those generally available in the collective bargaining context.”

What Is An “Unjust Dismissal”?

Division XIV of the Canada Labour Code is a unique statutory scheme that provides. special job protections for federally regulated non‐unionized employees. The unjust dismissal provisions are in sections 240‐246 of Division XIV. Section 240 states that an employee who has at least 12 consecutive months of continuous service with an employer may file a complaint if they are facing a dismissal and consider the dismissal to be “unjust”.

The provisions make it unlawful to terminate federal employees, who have at least one year of service, without either cause or due to a shortage of work. This is a significant departure from common law principles (and provincially regulated employees), which allow employers to terminate non‐union employees without cause by providing reasonable notice or pay in lieu.

The unjust dismissal provisions fully remove this right for federally regulated employers for employees with 12 months’ service and creates significant job security for these employees.

What do I do if I was Unjustly Dismissed?

If you are dealing with termination without cause, or constructive dismissal, and the termination was not due to a shortage of work, then it is an unjust dismissal.

It is often in your best interest to retain counsel who can successfully negotiate settlement before filing a complaint or a claim against the employer. This allows for an efficient and cost effective resolution for your matter. However, if the matter cannot reach a resolution via negotiations, then you or your lawyer will have two options.

Option 1, Filing A Complaint To The ESDC (Only Available to Federal Employees)

You can file a complaint with the Labour Program of Employment and Social Development Canada (ESDC). Please remember that you have 90 days from the date of dismissal to file this complaint. Once you file your complaint, ESDC will assign an inspector to your case. The inspector will try to help the parties settle the dispute. Essentially, the inspector acts as a mediator and tries to negotiate a settlement that is acceptable to both parties. Most resolutions for unjust dismissals complaints happen at this stage.

If the inspector is not able to resolve the matter, the Minister of Labour may appoint an adjudicator. There will be a hearing with the appointed adjudicator. It is important to note that adjudication is less formal. In addition, the rules of evidence are more relaxed to ensure that all relevant material is available to the adjudicator.

Where an adjudicator finds the dismissal is unjust, they may order the employer to do one of the following:

  1. reinstate the employee with or without compensation for lost wages;
  2. pay compensation for lost wages, without reinstating the employee; or
  3. do anything that is equitable in order to remedy any consequences of the dismissal; for example, clear an employee’s record of any references to the dismissal, pay legal costs, etc. (“make-whole”).

A decision from an adjudicator is final and is not available for an appeal.

The benefit with this option for federal employees is that this process is often faster than proceeding with litigation in the civil courts. Further, there are unique remedies that are only available to federal employees as described above.

Option 2, Utilizing The Civil Courts

Instead of filing a complaint, both a federal and a provincial employee can commence legal proceedings in court. You can utilize the Court of Queen’s Bench, if the damages are greater than $50,000.00. In contrast, you can commence proceedings in Provincial Court if your damages are under $50,000.00. You will have two years to commence proceedings from the date of dismissal. The process will follow the standard steps of litigation in either the Court of Queen’s Bench or Provincial Court.

Getting Help From Alberta Employment Lawyers

If you believe you were unjustly dismissed, you can contact our Calgary or Edmonton office. To make things easier, we offer in person, telephone and video consultations in Alberta. For the fastest service, please email our office with a brief outline of your situation. This allows us to provide you with feedback and/information right away. In the alternative, it also provide us with the ability to set up a meeting with the appropriate lawyer.

Please email us at [email protected]. Alternatively, please feel free to call us at 1-877-225-8817 from anywhere in Alberta.