Federal Employee Termination Regime

Posted by Johannes Schenk on March 31st, 2016 — Posted in Employment Law, Litigation, Professional Discipline

Atomic Energy of Canada Limited v. Wilson deals with the matter of terminations of Federal non-union employees.

Non-union federally regulated employees find themselves in a grey area when it comes to employment termination. The usual analysis requires cause for a termination, and in the absence of cause, payment of some amount of notice. In the case of federally regulated employees, the argument has been made that, termination must be based on cause and that there is no ability to fire an employee on a paid notice basis.

Well, the Wilson decision has been affirmed by the Federal Court of Appeal. The Supreme Court recently heard argument in the case and should render a decision sometime in mid-2016.

As it stands federal non-union employees can now be terminated on a non-cause basis with a notice payout.

The Court had this to say about the termination regime:

[34] Therefore, as I see it, the CLC sets out the following regime for dismissals.

[35] An employer can dismiss an employee without cause so long as it gives notice or severance pay (ss 230, 235). If an employee believes that the terms of his or her dismissal were unjust, he or she can complain (s 240). The only exceptions to the general right to make a complaint are where the dismissal resulted from a lay-off for lack of work or a discontinuance of the employee’s position, or the employee has some other statutory remedy (s 242(3.1)).

[36] In addition, an employee can complain if he or she believes that the reason given by the employer for the dismissal was unjustified or if the dismissal is otherwise unjust (eg, based on discrimination or reprisal) (s 240(1)). If the adjudicator appointed to entertain the complaint concludes on any basis that the dismissal was unjust, he or she has broad remedial powers to compensate the employee, reinstate the employee, or grant any other suitable remedy (s 242(4)).

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