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Employment & Labour

Federal employees should have right to be reinstated

Observers of employment law are eagerly awaiting a Supreme Court of Canada decision that is expected to determine if federal employees can only be removed with just cause, says employment lawyer Arthur Zeilikman.

In Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17 (CanLII), the Federal Court of Appeal dismissed arguments last year that federally regulated employees — who work at banks, telecommunications firms and railways, for example — can only be removed with just cause.

The landmark decision, which essentially gives those federal institutions the right to hire and fire as they please, threw into question the Canada Labour Code that grants the right of reinstatement for dismissal complaints, similar to rights enjoyed by unionized workers, Zeilikman says.

“According to the Federal Court of Appeal decision, if you’re being paid proper termination pay and are treated fairly, you don’t get your right to be reinstated,” says Zeilikman, principal of Zeilikman Law.

“You essentially become like a common-law employee.”

The Supreme Court heard the leave to appeal on Jan. 18, and a decision is expected later this year.

Generally, unionized employees who are terminated without just cause are able to get their jobs back or pay in lieu of reinstatement, he says. The Canada Labour Code, it is believed, was meant to imitate that to some degree. Common-law employees don’t receive that same benefit, typically walking away with money instead.

That difference between regular and unionized employees is a “major distinction,” Zeilikman says, because adjudicators say unionized and previously federal workers could be “made whole,” allowing the employee to go back to the same position as before they were fired.

“So if you were litigating for a year and a half, and if you were reinstated, the adjudicator could even order the employer to give you back pay,” Zeilikman says. Otherwise, the employer pays out an employee for a period of “reasonable notice,” or how long it could hypothetically take to find a job.

The appeal court decision changes that underlying premise, Zeilikman says, adding he has no predictions of which way the Supreme Court ruling could go if leave is granted. A decision is expected later this year, according to Canadian Lawyer.

“Federal employees should have the right to be reinstated,” Zeilikman says. “That’s the whole idea of the Code. That’s why the provision is there.”

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