Reinstatement is the Default Remedy under the Unjust Dismissal Section of the CLC:

In Randhawa v The Bank of Nova Scotia ( HRDSC File # YM2707-10272 , not yet on CanLII ) Adjudicator Lorne Slotnick made these comments about the appropriate remedy in an Unjust Dismissal case under section 242 of the Canada Labour Code.

In my view, where a complaint of unjust dismissal under the Canada Labour Code is upheld, the default remedy must be reinstatement, as it is for unionized employees covered by a collective agreement. This is the clear implication of the Supreme Court’s analysis in the Wilson v. Atomic Energy case, in which the court agreed that the unjust dismissal provisions were meant to give non-unionized non-management employees in federally regulated workplaces “expansive

protections much like those available to employees covered by a collective agreement.” (at paragraph 1.)

Undoubtedly there are exceptions to the general rule that reinstatement will be ordered where the dismissal is found to be unjust. In general, this will be appropriate where the employment relationship is no longer viable. The bank pressed this argument, relying on its view of Ms.

Randhawa’s dishonesty and asserting it has lost trust in her. It referred to several cases where adjudicators have declined to reinstate employees who were found to have been unjustly dismissed. Those decisions predate Wilson v. Atomic Energy. However, in light of the court’s approach in Wilson, damages in lieu of reinstatement must be seen to be appropriate only in exceptional cases, as it is in labour arbitration. (See Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28 (CanLII).)

Several factors may be relevant in determining whether the employment relationship is not viable. (They are listed in Re DeHavilland Inc. and CAW (1999) 83 L.A.C. (4th) 157 (Rayner) and in Yesno v. Eabametoong First Nation Education Authority [2006] C.L.A.D. No. 352 (Kaufman).) Here, the bank relies most heavily on its statement that it is unable to trust Ms.

Randhawa because of her conduct in denying breaches of procedure until faced with clear proof.

I agree with the statement in Roda v. Bank of Montreal, a case cited above, that assessing whether the employer would be able to trust a reinstated employee is not a matter of simply accepting the assertions of the employer. The adjudicator in that case put it as follows (at paragraph 25):

In my opinion, determining whether the relationship of trust between the parties can be restored is not a matter of determining whether or not one party subjectively feels that the relationship of trust cannot be restored. Rather the test is an objective one based on tall the evidence to determine whether the relationship of trust can be restored.

Here, I agree with the bank that there is some foundation, based on Ms. Randhawa’s conduct prior to termination and on her evidence at the hearing, to question whether she can be relied on to be forthright when questioned by management if she is returned to a customer service

supervisor position. However, in my view, this factor is not strong enough to conclude that any employment relationship is no longer viable because of dishonesty.

This case once and for all makes it clear that the Unjust Dismissal provisions of the CLC are designed to give collective agreement type termination rights to non-unionized employees. It is not simply a statutory restatement of the common law right to reasonable notice .

I read almost every decision under the Unjust Decision section and I am continually struck by these  facts :

1) Most Complainants and many Employers appear on their own behalf , without lawyers.

2) The overwhelming majority of Complainants do not request reinstatement as a remedy .

3) Instead of reinstatement , the Adjudicators often award monetary compensation which is often much less that even the applicable common law notice period.

In this case Ms Rawdhawa sought reinstatement and got it, granted to a lower rated position because her previous position no longer existed in the Bank.

She also got back pay of about 27 months and substantial indemnity costs for a five day hearing.

This case shows that when properly represented by counsel, this   procedure can be as effective, if not more effective, than court based litigation.