If you’re not a union member, your boss can fire you for just about any reason or no reason at all. For the vast majority of nonunion workers in Canada, job security is therefore entirely precarious. Your income and livelihood are subject to the whims of your employer.
In any sane and rational economy, this wouldn’t be the case, but for decades employers in Canada have resisted a basic legislative reform that would provide all workers with better job security: unjust dismissal protection.
In 11 of the 14 jurisdictions in Canada (10 provinces, three territories and federal), bosses can fire or lay off their workers for any reason so long as they provide the required notice period or pay in lieu of notice. Notice periods vary across the country, but generally employers need to give between one and eight weeks of notice, depending on how long a worker has been in their job.
In most jurisdictions, there are only minor limitations on the employers’ ability to fire. Human rights laws ostensibly protect people from being terminated based on race, gender, religion or sexual identity. Theoretically, the boss can’t fire anyone for union organizing or as reprisal for exercising employment rights, such as filing a labour standards complaint, though in practice this happens frequently.
Additionally, in cases where an employee has been seriously “delinquent” or incompetent on the job, the employer may be relieved of having to provide notice or pay in lieu of notice before firing the worker. Again, if the worker fights it through a provincial Ministry of Labour or equivalent body, the employer has to prove the firing without notice was warranted. There is often an additional obligation that the employer engaged in “progressive discipline” and didn’t simply fire the worker on a first infraction. But again, the worker needs to have the resources and knowhow to bring a complaint. Often, they don’t.
Overall, Canadian law prioritizes employer “flexibility” and the bosses’ right to do as they please with their capital, including how much of your labour they want to employ. Statutory notice of termination rules, while an important victory, are mostly residual and don’t meaningfully infringe on employers’ right to fire.
Labour activists have long recognized that this situation is unacceptable and that workers deserve better. Passing legislative protections against unjust dismissal has been the primary route to reform.
Unjust dismissal rules extend to nonunion workers what unionized workers enjoy through their collective agreements, i.e., protection against being fired at the employer’s will. It’s a uniform practice for unions to negotiate “just cause” provisions into all their collective agreements, guarding against union members being fired without reason or without a series of escalating disciplinary steps. In several provinces, labour legislation actually requires that union contracts contain just cause rules.
Early proponents framed the case for universal just cause by emphasizing that workers have an interest in their jobs not only for economic reasons but also because workers draw self-worth and identity from their jobs. Most workers own very little and so come to experience their jobs as something they possess and ought to have some ongoing right to, or so the thinking went.
The first Canadian jurisdiction to introduce an unjust dismissal law was Nova Scotia in 1975. Unjust dismissal was then passed for federally regulated workers in 1978, and by the government in Quebec in 1979. In Nova Scotia, the law is limited and only applies to workers with 10 or more years of employment with the same employer. In Quebec, the eligibility threshold is two years of continuous employment. At one year’s employment, the federal jurisdiction’s unjust dismissal law has the widest scope.
In Quebec and the federal jurisdiction, when processing unjust dismissal complaints, the practice among labour adjudicators has been to mirror the procedure for union workers. Employers need to show sufficient reason for a termination and that they first used “progressive discipline.” If the employer is letting the worker go because of a lack of work, they need to demonstrate that the particular worker wasn’t singled out for some other personal reason.
The intention of governments in the three Canadian jurisdictions that enacted unjust dismissal legislation was to provide workers with access to reinstatement when wrongfully terminated. The reason for this is that reinstatement tends to be the primary remedy in unionized workplaces. However, as a recent research paper finds, in the majority of unjust dismissal complaints, nonunion workers in Canada are compensated, not reinstated.
The general guideline under federal unjust dismissal law, for example, is that the dismissed employee should be “made whole,” which can either involve reinstatement with any back pay that might be owed or with compensation for lost wages and benefits and any other relevant economic considerations. Calculating lost wages between when a worker is wrongfully fired and when the labour board rules in their favour is simple; figuring out the extent of loss a worker incurs beyond that because of a wrongful firing is more difficult. Labour adjudicators essentially have to ask, ‘What would the worker likely have received had the termination never taken place?’
Quebec and Nova Scotia are much less committed to this ‘make whole’ approach. Workers in these provinces who win an unjust dismissal case and aren’t reinstated will usually get back wages and benefits, and perhaps some limited additional money. But any extra compensation they receive tends to be unrelated to the actual damages they’ve suffered, and usually quite small in amount.
Federally regulated workers, on the other hand, tend to fare much better. Labour adjudicators at the Canadian Industrial Relations Board (CIRB) are far more likely to assess additional damages for workers who have been unjustly dismissed and who can’t be reinstated.
However, the more important outcome of the better federal unjust dismissal protections is that employers have to think twice before attempting to fire someone. The prospect of tough penalties at the CIRB is a real and compelling threat.
In the past, it’s been somewhat difficult to rally forces behind winning unjust dismissal protections. Bosses generally resist any interference with their “managerial prerogative” and unions, whose members already have just cause protections in their collective agreements, haven’t prioritized introducing unjust dismissal legislation that would cover nonunion workers. As we saw during the pandemic, one of the primary selling features of union membership remains protection against job loss.
Even workers’ advocates outside of the union movement have tended to focus their energies on other issues, such as raising low wages and fighting wage theft, improving health and safety, and generally strengthening minimum employment standards. Workers’ lack of protection during the pandemic further encouraged decent work advocates to turn their attention to winning permanent paid sick days.
These arguably more immediate concerns are entirely understandable. Wages, benefits and safety are pressing issues for many nonunion workers. However, it’s also the case that employers’ ability to fire almost indiscriminately undermines efforts to improve other working conditions.
Workers in precarious situations frequently lack the institutional voice and power to affect their conditions of work. Even with the right to refuse unsafe work and protection from being fired for union organizing activity, many workers rightly fear retaliation or reprisal from their bosses for speaking up and advocating for themselves and their coworkers.
It’s time for all workers in Canada to have protection from unjust firings. Workers should have a right to their job at least comparable to the employer’s right to their capital. With just cause protection for all, workers and their advocates could better fight to raise wages and improve working conditions.
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