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

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):

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.