No. 14–Section 246.1 Reprisal Complaints
The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
What is a section 246.1 complaint under Part III (Standard Hours, Wages, Vacations and Holidays) of the Canada Labour Code (the Code)?
Section 246.1(1) of the Code prohibits a federally regulated employer from retaliating against an employee for exercising their rights under Part III of the Code.
Section 246.1(1) provides that an employee may make a complaint in writing to the Canada Industrial Relations Board (the Board) if they believe that their employer has taken any reprisals against them in contravention of sections 173.01(5), 174.1(4), 177.1(7), 182.2(3), 203.3(3), 208, 209.3, 238, 239, 239.1 or 247.96 of the Code. In general, these sections of the Code deal with issues such as work schedules, the right to refuse overtime, the right to request flexible work arrangements, requesting a review of wage rates, pregnancy, garnishment, sick leave, work-related illness and injuries, and leaves of absence for members of the reserve force.
Specifically, the following sections of the Code provide that an employer shall not dismiss, suspend, lay off, demote or discipline an employee, or take into account any of the following in any decision to promote or train the employee, because:
- the employee has refused to work a work period or shift in their work schedule that starts within 96 hours from the time that the work schedule is provided to them (section 173.01(5));
- the employee has refused to work overtime, in order to carry out family responsibilities related to the health or care of family members or the education of family members who are less than 18 years of age (section 174.1(4));
- the employee has made a request for flexible work arrangements (section 177.1(7));
- the employee has made a written request to review wage rate because it is believed that their rate of wages is less than the rate of another employee due to a difference in employment status (section 182.2(3));
- the employee has made a written request to review wage rate because it is believed that their rate of wages is less than the rate of another employee due to status as an employee of a temporary help agency (section 203.3(3));
- the employee is pregnant or has applied for leave (section 209.3(1)); or
- the employee is a member of the reserve force or intends to take or has taken a related leave of absence (section 247.96).
The following sections provide that an employer shall not dismiss, suspend, lay off, demote or discipline an employee:
- because garnishment proceedings may be or have been taken with respect to the employee (section 238);
- because of absence from work due to illness or injury (section 239); or
- because of absence from work due to work-related illness or injury (section 239.1(1)).
Additionally, no employer shall require an employee to take a leave of absence from employment because the employee is pregnant (section 208).
An employee may also file a complaint with the Board if they have been dismissed, suspended, laid off, demoted, financially or otherwise penalized, disciplined, denied promotion or training opportunities, or threatened with any reprisal or retaliatory action because the employee:
- has made a complaint under Part III of the Code, other than an unjust dismissal complaint under section 240 of the Code;
- has provided information or assistance to the Minister of Labour in the exercise or performance of their powers, duties and functions under Part III of the Code;
- has testified, or is about to testify, in a proceeding taken or an inquiry held under Part III of the Code; or
- has exercised, or sought to exercise, any right conferred on the employee by Part III of the Code.
Section 246.1(4) of the Code provides that once a written complaint has been made, the employer has the burden of proving that a reprisal or retaliatory action was not taken. The Board cannot deal with a complaint under section 246.1 of the Code unless the employer has taken disciplinary or retaliatory action, or threatened to take such action, against an employee for seeking to exercise their rights under Part III of the Code.
The role of the Board in a complaint under section 246.1 is to determine whether or not an employer took disciplinary or retaliatory action against an employee for exercising or seeking to exercise their rights under Part III of the Code.
Who may file a complaint under section 246.1?
Any employee of a federally regulated employer, whether represented by a union or not, who believes that their employer has taken disciplinary or retaliatory action, or threatened to take such action, against them for seeking to exercise any rights under Part III of the Code may file a complaint under section 246.1(1).
Section 246.1(2) provides that an employee cannot file a complaint under section 246.1(1) if they have made a complaint based on substantially the same facts under section 240(1) (unjust dismissal complaint) or 247.99(1) (genetic testing complaint).
When to File a Complaint
A section 246.1 complaint shall be made to the Board not later than 90 days after the day the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint.
Although section 16(m.1) of the Code allows the Board to extend the 90-day time limit, the Board will only do so in exceptional circumstances. Please note that the Board ultimately has the discretion to allow or to not allow a complaint filed in an untimely manner. If the employee would like the Board to consider extending the 90-day time limit, they must explain the exceptional circumstances that they feel the Board should consider in deciding whether or not to exercise its discretion, and provide supporting documentation, if necessary.
How to File a Complaint
It is strongly recommended that an employee use the Reprisal Complaint form. It asks for the necessary information that the Board needs in order to consider and determine the complaint. Not completing this form may cause delays in the complaint process.
The employee may file their complaint with one of the Board’s regional offices. It may be submitted electronically through the Board’s web portal, delivered in person or sent by courier or mail. In such cases, the complaint is deemed to be filed on the date of receipt by the Board. If the complaint is sent by registered mail, the filing date is the date it was registered and mailed.
The information provided and any documents submitted to the Board are collected solely for the purpose of administering the Code and will be used to deal with and adjudicate matters that come before the Board. Parties that engage the Board’s services should be aware that this is a public process. Documents filed with the Board will be placed on the public record, with the exception of documents that the Board declares to be confidential pursuant to section 22 of the Canada Industrial Relations Board Regulations, 2012. The Board provides public access to case files and posts key decisions on its website. Board decisions may identify parties and witnesses by name and may include information about them that is relevant and necessary to the determination of the dispute. For sensitive information, a request can be made to the Board for a Confidentiality Order. See Information Circular No. 12 for the Board’s Policy on Openness and Privacy.
What happens after the complaint has been filed?
A letter will be sent to the parties [complainant and employer (respondent)], acknowledging receipt of the complaint and appointing an Industrial Relations Officer (IRO) to oversee the conduct of the file and assist the parties in reaching a settlement of the complaint.
If the employee is represented by a union, the union will be notified of the complaint and be given a copy of the complaint. The union may choose to file a request to intervene. If the union’s request to intervene is granted, it will become a party to the complaint. The employee may want to contact the union to determine whether it can provide any assistance. Contact and consultation with the union prior to filing a complaint is often a prudent step to take.
Response and Reply
The employer will have 15 days from the receipt of the Board’s letter to file a response to the complaint. Upon receipt of a response, the complainant will have 10 days to file a reply.
The Board may refuse to consider any documents/submissions received after the prescribed time limit.
Exchange of Documents
Parties are required to deliver to the other party/parties a copy of any response, reply or other document filed with the Board, and to advise the Board in writing of the time and manner of delivery, which is called service. The manner of service includes delivery by fax, by courier or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the complaint.
The IRO will communicate with the parties in order to arrange a mediation meeting to assist the parties in attempting to resolve the dispute. This mediation meeting is voluntary and the information acquired by the officer in the mediation process shall remain confidential and shall not be divulged to the Board.
It is in the parties’ best interests to file complete, accurate, timely and detailed submissions in support of their respective positions.
If the complaint is not resolved through mediation or agreement of the parties, it will be referred to the Board and the Board may decide the complaint without holding an oral hearing. In such a case, the Board would determine the complaint based on the written submissions filed by the parties.
If the Board decides to hold an oral hearing, it will inform the parties of the date and place of the hearing.
Although a hearing may be scheduled, this does not preclude a settlement of the complaint by the parties at any time.
Rejection of the Complaint
Section 246.3(1) of the Code provides that the Board may reject a reprisal complaint under certain circumstances. These circumstances include:
- complaints that are not within the Board’s jurisdiction;
- complaints that the Board deems to be frivolous, vexatious or not made in good faith;
- complaints that have already been settled or dealt with through other recourse; or
- complaints that should be resolved through other means, including a collective agreement’s grievance and arbitration provisions.
The Board may also reject a complaint that was suspended if the complainant has not taken the required measures within a specified period.
What remedies can be ordered by the Board?
If the Board determines that a complaint under section 246.1(1) is justified, the Board may, by order, require the employer to:
- cease engaging in or to rescind the reprisal;
- permit the employee to return to the duties of their employment;
- reinstate the employee;
- pay compensation for any loss of remuneration by the employee;
- pay compensation for any financial or other penalty imposed on the employee; and
- do any other thing that the Board considers equitable to remedy or counteract any consequence of the reprisal.
The Board will notify the parties in writing of its decision.
If you have any questions concerning this information circular, you may contact a Board IRO at 1-800-575-9696.
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