Canadian employment law provides a buffet of remedies for an aggrieved employee to pick and choose from. As Anil and Neerja Sharma learned, however, reinstatement isn’t currently on the menu.
The Sharmas were fighting for their jobs and their reputations. The couple had found their dream jobs as sales agents for Quadrus Investment Services, a subsidiary of London Life Insurance.
Unfortunately, their dreams came to an abrupt end when, under the cloud of a fraud investigation, they were suspended and then fired. The couple sued for wrongful dismissal, and before a trial could be held, they brought a preliminary motion, asking the court to reinstate their jobs and to force Quadrus to issue a notice to the industry and their clients, stating they had done nothing wrong.
At the hearing of the motion, it wasn’t clear whether the Sharmas were at fault. But it didn’t matter. Reinstatement and compelling a declaration from their ex-employer weren’t remedies available to them, even had they been successful at trial.
Much to the chagrin of many non-unionized ex-employees, reinstatement to an old job is not often sought, and less frequently granted:
- Employees can seldom persuade a court to forcibly reunite them with their ex-employer. To succeed, damages must be an inadequate remedy and supervising the parties must be possible and preferable — an unlikely occurrence. Thus I often counsel these employees to spend their time and resources seeking compensation if wronged.
But reinstatement is an attainable remedy in alternative legal forums:
- Where allegations of discrimination are manifest, I’ll pursue a claim under provincial or federal human rights legislation. If the claim is meritorious, a human rights tribunal can order reinstatement. Often, the prospect of having to welcome back an ex-employee is so daunting employers are quick to empty their pockets in exchange for a withdrawal of the claim.
- Unionized employees have the right to reinstatement, negotiated directly into their collective agreements.
- Non-managerial employees working for a federally regulated employer, such as a bank, can pursue an unjust dismissal complaint under the Canada Labour Code, which permits an arbitrator to award, among other remedies, reinstatement.
- Employers who run afoul of the pregnancy and parental leave protections offered to employees under the Employment Standards Act face having an employment standards officer investigate their practices and then issue an order requiring the reinstatement of a terminated employee.
Non-unionized employees do have a modicum of hope. When the Human Rights Code is amended shortly, it appears judges will have the power to order reinstatement, force an employer to write a letter of reference and even make employers post letters of apology in the workplace or the media.