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Canada (Federal only) - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Canada (Federal only) - 2012    

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Obligation to provide reasons to the employee: No
  • No general obligation on the part of the employer to indicate the reasons for the dismissal to employees when dismissing them.
    However, the employer shall provide a written statement indicating the reasons for dismissal only upon request by the employee or the inspector in the process of a complaint for unjust dismissal. According to sec. 241. (1) CLC, this only applies to employees described in sec. 240(1). This covers any employee:
    (a) who has completed twelve consecutive months of continuous employment by an employer, and
    (b) who is not a member of a group of employees subject to a collective agreement.
    In addition this provision is subject to the restrictions set up in sec. 242(3.1): complaints of unjust dismissal do not cover lay-off due to lack of work or the discontinuance of a function .

Valid grounds (justified dismissal): any fair reasons
  • The CLC does not contain as such a provision requiring that termination with notice be justified by a fair reason. However, this is implied from the division XIV of the Code on "unjust dismissal". This division provides for the right of an employee who has completed 12 consecutive months of continuous employment and is not covered by a collective agreement to make a complaint of unjust dismissal to the competent authority which may order reinstatement or compensation if the dismissal is found to be unjust. (sec. 240 and 242 CLC)
    Complaint of unjust dismissal are not available to employees who have been laid off because of lack of work or because of the discontinuance of a function (sec. 242 (3.1) CLC)

Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; temporary work injury or illness; race; colour; sex; sexual orientation; religion; trade union membership and activities; disabilities; whistle blowing; raising occupational health and security concerns; ethnic origin
  • Under the CLC, the following situations constitute invalid grounds for the dismissal of an employee:
    - the employee's trade union membership and activities, participation in a general strike action or participation in proceedings against the employer's related to those matters (sec. 94 and 96 CLC);
    - the employee has participated in proceeding or inquiry (filing a complaint, testifying) regarding occupational and health and safety matters. (sec. 147 CLC)
    - the employee is pregnant or has requested maternity or parental leave (sec. 209.3 CLC);
    - garnishment proceedings may be or have been taken against the employee (sec. 238, CLC); and
    - the employee has been absent due to illness or injury, provided that he or she had worked for the employer for at least three months, and that his or her period of absence was not over 12 weeks. Nevertheless, the employee must submit a medical certificate to the employer within 15 days after returning to work (sec. 239 CLC).
    - the employee is absent from work due to work-related illness or injury (sec. 239.1 CLC)

    In addition, see the general prohibition of discrimination including in employment matters contained in the Canadian Human Rights Act, R.S.C. 1985, c. H-6: see sec. 3 on grounds of discrimination together with art. 7 on discriminatory practice in employment that prohibits an employer from refusing to employ or continuing to employ an individual on a prohibited grounds of discrimination.
    See also sec. 14.1 on prohibition of retaliation for filing a complaint of discrimination.
    (The prohibited grounds of discrimination are the following: race, national or ethnic origin, colour, religion, age, sex (which includes pregnancy or child-birth), sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered [prior to March 2012: conviction for which a pardon has been granted])
    Note that this Act only applies within the realm of federal jurisdiction; each provincial and territorial government has enacted its own anti-discrimination law.

Workers enjoying special protection: no protected groups
  • No statutory provision found in the legislation reviewed.