What is Reinstatement
Reinstatement can occur under certain circumstances where an employee who has been terminated is entitled to resume their previous employment. Generally, there are three ways for an employee in Ontario to achieve reinstatement. An employee can either claim human rights violation, retaliation, or right to reinstatement under the Canada Labour Code.
When an Employee is Eligible for Reinstatement
i. When termination constituted violation against the Human Rights Code
Human rights legislations protect employees from discrimination on the basis of age, race, religion, gender, sexual orientation, etc. If an employee’s termination was motivated by one of these grounds, a remedy of reinstatement may be applicable.
ii. When termination constituted retaliation for a workplace complaint
Both the Occupational Health and Safety Act and the Employment Standards Act contain provisions protecting employees from retaliation when they are exercising or enforcing their workplace rights. For example, if an employee is dismissed as a result of report unsafe work conditions or refuse to work under an unsafe work condition, the applicable remedy may include reinstatement.
iii. When the employment is federally regulated
Employees working in federally-regulated industries are governed under the Canada Labour Code and are more likely to be reinstated. These industries include telecommunications, banks, railways and trucking. In the Code, reinstatement is widely provided as a remedy to non-managerial workers who have been unjustly dismissed.
When Employment Reinstatement is Impossible
i. For a “manager” under section 167 (3) of the Canada Labour Code
Under the Canada Labour Code, reinstatement as a remedy to unjust dismissal is provided in its section 241.2(4), Division XIV, whereas its section 167 (3) stipulates that Division XIV in its entirety does not apply to “managers”. Generally, an individual must have independent decision-making authority in order to be considered a “manager” for the purpose of the Code.
ii. When reinstatement is not appropriate
More commonly, when an employee is statutorily entitled to reinstatement, the courts’ primary inquiry will be whether it is the appropriate remedy given the specific contexts. Notably, the Federal Court recently clarified in Kouridakis v Canadian Imperial Bank of Commerce, 2019 FC 1226 that reinstatement “is not the standard remedy” in all unjust dismissal cases. In general, the chances of an employee to be successfully reinstated is relatively low.
In Kouridakis, the Court found that it was reasonable not to reinstate the employee. The employee alleged bullying and harassment at workplace, and the Court upheld the arbitrator’s reasoning that since the relationship between the employer and employee was likely unamendable, reinstatement could cause the employee to face adverse consequences on a day-to-day basis.
In other words, courts will consider whether reinstatement is impractical or undesirable, especially given the frictions occurred in the employment relationship and the fact that the employee has commenced legal actions against the employer.
Things an Employee Should Know About Reinstatement
Reinstatement is a powerful remedy. It is important for employees to be aware of how to make an application or complaint, and the potential effects of claiming it.
- First, there is a special limitation period of one year for employees who wish to claim reinstatement under the Human Rights Code to make an application to the Human Rights Tribunal after the discriminatory treatment occurred.
- Second, for federally regulated employees under the Canada Labour Code, they only have 90 days from the date of their dismissal to file an unjust dismissal complaint.
- Last but not least, even it is not the employee’s intention to be reinstated, it may still be claimed strategically. As employers tend to be unwilling to restore an employee that they have dismissed, if parties are seeking settlement, a claim for reinstatement can serve as an incentive for employers to offer or agree to more favourable terms for employees.
If you are seeking reinstatement as a legal remedy after being terminated from work, top Toronto employment lawyer, Stacey ball can help you determine your legal options. Please call us at 416-921-7997 extension 227.