Reinstatement isn’t an option for Canadian employees
Author: Daniel A. Lublin
Canadian employment law provides a buffet of remedies for an aggrieved employee to pick and choose from. As Mr. and Ms. Anil and Neerja Sharma learned, however, reinstatement isn’t currently offered on the menu.
Anil and Neerja Sharma were fighting for their jobs and for their reputations. The couple had found their dream jobs as sales agents for Quadrus Investment Services, a subsidiary of London Life Insurance. Unfortunately for the Sharmas, their dreams came to an abrupt end when, under the cloud of a fraud investigation, they were suspended and then fired. The couple sued for wrongful dismissal, and before a trial could be held, they brought a preliminary motion, asking the court to reinstate them to their jobs and to force Quadrus and London Life to issue a notice to the industry and their clients, stating that they hadn’t done anything wrong.
At the hearing of the motion, it wasn’t clear whether the Sharmas were at fault. But it didn’t matter. Reinstatement and compelling a declaration from their ex-employer weren’t remedies available to them, even had they ultimately been successful at trial.
Much to the chagrin of many non-unionized ex-employees, reinstatement to their old job is a remedy not often sought and less frequently granted:
- Employees can seldom persuade a court to forcibly reunite them with their ex-employer. To succeed, damages must be an inadequate remedy and supervising the parties must be both possible and preferable – an unlikely occurrence. Thus, in my own practice, I often counsel these employees to spend their time, and resources, seeking compensation if wronged.
But reinstatement is a desirable, and attainable, remedy in alternative legal forums:
- Where allegations of discrimination are manifest, I’ll pursue a claim under provincial or federal human rights legislation. If the claim is meritorious, a human rights tribunal can order reinstatement. Often, the prospect of having to welcome back a terminated employee is so daunting that employers are quick to empty their pockets in exchange for a withdrawal of the claim.
- Unionized employees receive the benefit of the right to reinstatement, negotiated directly into their collective agreements. Grievance arbitrators can, therefore, order an employee back to the workplace, even years after the break-up.
- Non-managerial employees working for a federally regulated employer, such as a bank, or airline, can pursue an unjust dismissal complaint under the Canada Labour Code, which permits an arbitrator to award, among other remedies, reinstatement. While most of my federally regulated clients are not desirous of reinstatement, it is the potential of returning where unwanted that can influence the settlement position of an otherwise inflexible ex-employer.
- Employers who run afoul of the pregnancy and parental leave protections offered to employees under the Employment Standards Act face having an employment standards officer investigate their practices and then issue an order requiring the reinstatement of a terminated employee.
Non-unionized employees do have a modicum of hope. When the Human Rights Code is amended shortly, it appears that judges will have the power to order reinstatement, force an employer to write a letter of reference and even make employers post letters of apology in the workplace or the media. The potential for such incalculable awards, along with damages for wrongful dismissal, ups the ante of litigation, and thus, the gamble of having a case heard at trial. Employers will be ever more willing to empty their pockets in exchange for the assurance that their name won’t end up in the morning news.