No. 4–Adjudication of Unjust Dismissal Complaints
Rules of Procedure
This document describes the procedures that must be followed by a complainant (employee) whose unjust dismissal complaint has been referred by the Minister of Labour to the Canada Industrial Relations Board (the CIRB or the Board) for adjudication.
It also describes the procedures to be followed by the respondent (employer) following receipt of the Board’s notice of the referral of the unjust dismissal complaint for adjudication.
To ensure the timely processing of the complaint, it is important that these rules be reviewed carefully.
Should you have any questions concerning the Board’s procedure, you can contact a Board officer at 1-800-575-9696.
Section 242(3)(a) of the Canada Labour Code (the Code),Part III (Standard Hours, Wages, Vacations and Holidays), provides that a complaint of unjust dismissal filed by an employee can be referred by a Labour Program inspector to the CIRB for adjudication.
When such a referral is made to the Board, the Board shall consider and render a decision to determine whether the dismissal was unjust. If the Board decides that a person has been unjustly dismissed, the Board, pursuant to section 242(4) of the Code, may, by order, require the employer to pay compensation for lost wages, reinstate the employee and do anything that is equitable in order to remedy any consequence of the dismissal.
For further information about the adjudication of unjust dismissal complaints by the CIRB, please consult the Board’s Information Circular No. 15–Adjudication of Unjust Dismissal Complaints.
For copies of the Code and the Canada Industrial Relations Board Regulations, 2012 (the Regulations), rules of procedure, forms and information circulars, please visit the Board’s website.
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 the complaint. 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 Regulations. The Board provides public access to case files and posts key decisions on its website. The final decision 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.
Filing a Complaint of Unjust Dismissal
An employee who worked in a federally regulated industry, was continuously employed with the employer for 12 consecutive months or more, was not subject to a collective agreement and was not a manager must file a complaint of unjust dismissal with the Labour Program within 90 days of dismissal. For more information, please visit the Labour Program website.
Do not file your original complaint with the CIRB. All new complaints must first be filed with the Labour Program.
Once the process with the Labour Program is completed, the complaint may be referred by the Labour Program to the CIRB for adjudication.
Notice of the Referral for Adjudication to the Board
When the CIRB receives the request for adjudication and the file from the Minister, it will send the complainant and the respondent an acknowledgment letter acknowledging receipt of the referral for adjudication and will include a copy of relevant documents. The letter will also inform the parties of the name and contact information of the CIRB Industrial Relations Officer (IRO) appointed to the complaint.
The IRO is responsible for managing the file and assisting the parties in reaching a settlement. For more information on the role of the IRO, please consult the Board’s Information Circular No. 1–The Role of the Board’s Industrial Relations Officers.
Shortly after sending the Board’s acknowledgment letter, the IRO will contact the employee and employer to explain the Board’s processes, answer any questions they might have and discuss any issues that could arise during the conduct of the file.
Pursuant to sections 9 and 12 of the Regulations, the respondent (employer) will have 15 days from receipt of the acknowledgment letter to file a response.
Pursuant to sections 9 and 12 of the Regulations, upon receipt of the employer’s response, the complainant (employee) will have 10 days to file a reply.
Request for Oral Hearing
In accordance with section 10(g) of the Regulations, any request for an oral hearing must include the reasons for the request. Please note that, in any event, the Board is empowered under section 16.1 of the Code to decide any matter before it without holding an oral hearing. In such a case, the Board would determine the complaint based on the written submissions of the parties (employee, employer). It is therefore in the parties’ best interests to file complete, accurate and detailed submissions and include all relevant information and documents in support of their respective positions.
The CIRB may refuse to consider any responses or replies received after the prescribed time limit.
Extension of the Time Limits
To ensure the timely processing of matters before the Board, and in furtherance of the objectives of the Code, the Board’s practice is not to grant extensions of the time limits for filing a response or a reply, except in exceptional circumstances. If you must request an extension of time limits, you must first contact the other parties and obtain their agreement, before making a request to the Board.
Exchange of Documents
Pursuant to section 23 of the Regulations, parties must deliver to the other party/parties a copy of any response, reply or other document filed with the Board and advise the Board in writing of the time and manner of this 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.
Request for Production or Disclosure of Documents
Pursuant to section 21(1) of the Regulations, if a party seeks to have another party disclose documents that are relevant to the complaint before the Board, the request must first be made in writing to the other party, before applying to the Board for an order requiring disclosure.
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.
Pursuant to section 16(a.1) of the Code, the Board has the power to schedule and hold pre-hearing conferences with the parties to discuss both preliminary and substantive issues relating to the complaint. The pre-hearing conferences are normally conducted via teleconference, although videoconferences and in-person meetings are also used in some cases.
The pre-hearing conference is considered an integral part of the hearing process. Parties are expected to attend the pre-hearing conference prepared to discuss and address both preliminary and substantive aspects of the matter before the Board. Any Board decisions or rulings made at the pre-hearing conference are binding on all the parties.
If the Board decides to schedule a pre-hearing conference, the parties will be advised of the date, time, location and other information (e.g., teleconference dial-in procedures) for the pre-hearing conference as soon as possible.
Pursuant to section 47(2) of the Regulations, if a party does not attend a pre-hearing conference after having been given notice, the Board may proceed and decide the matter in the party’s absence.
If the Board finds it necessary to schedule a hearing, the parties will be advised of the time and place of the hearing as soon as possible. Although a hearing may be scheduled, this does not preclude a settlement of the complaint by the parties at any time.
Adjournment or Postponement Requests
The logistical difficulties caused by the Board’s heavy caseload and its geographically widespread and bilingual community render it very difficult to reschedule dates in an orderly and timely fashion. The Board is therefore very reluctant to accede to requests for postponement of its proceedings.
If a party requires a rescheduling of a hearing, that party must first consult with the other party/parties as described in the Board’s Information Circular No. 4–Board Hearings, which is available on the Board’s website.
In the adjudication of unjust dismissal complaints, the Chairperson of the Board may appoint a member of the CIRB or an external adjudicator to hear and determine the complaint. Members of the CIRB and external adjudicators have all the powers, duties and functions conferred on the CIRB by the Code regarding any matter to which they have been appointed, and their orders and decisions are considered to be the Board’s orders and decisions.
Decision of the Board
The Board will notify the employee and the employer in writing of its decision, with reasons. A copy of the Board’s decision will also be provided to the Minister. All key decisions of the Board are published on its website.
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