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An employee, just fired for no good reason, walks into a lawyer's office.

Employee: “I want to sue to get my job back.”
Lawyer: “Sorry, the courts won't reinstate you. They will only compensate you with money.”
Employee: “But last year my buddy got fired, and the company was ordered to take him back.”
Lawyer: “Ah, your friend was probably unionized. Labour arbitrators usually reinstate unjustly fired employees, but courts don't.”
Employee: “Why not?”
Lawyer: “Good question!”

This scene is replayed every week in employment law offices. The fired employee is incredulous that the court won't force the company to take him back. In principle, why should non-unionized employees be treated so differently under the common law?

Long ago, the courts held that it would be wrong to order “the specific performance” of an individual employment contract (that is, to order an employer to continue employing someone). The original justification apparently relied on this reasoning: To order reinstatement would be unfair to employers, unless the employers were given the countervailing right to force employees to stay in their employ. Forcing employees to stay in their jobs would be akin to slavery. The courts won't enforce slavery. Therefore, a reinstatement order would be unfair to the employer.

This rationale would logically apply to all fired employees, whether they are unionized or not. Yet labour arbitrators have routinely reinstated for decades. Meanwhile, the courts continue to apply the “trite law” that non-union employees are not entitled to reinstatement. It is time that the courts revisited the reasons for this anomaly in the common law. Does it continue to serve a useful purpose? This writer thinks not.

When people ask what their union really does for them, or they complain about union dues, they tend to overlook the value of the right to reinstatement. It is important for employees, particularly long-term employees, to have some security. Without the right to reinstatement, an employer can turf a 30-year employee just so it can pay a younger replacement employee less. The turfed older worker is left to search for a new job, in an economy where jobs are often scarce. And his job search will be further hampered by the perception that older employees are close to retirement and so are not a long-term solution to a staffing void.

An exception to this rule used to be employees who worked for federally regulated employers, where even non-unionized employees had some recourse to reinstatement. However, in a recent Federal Court of Appeal, the Court decided that reinstatement is not necessarily a remedy under the Canada Labour Code unjust dismissal regime. For more on that decision, see our recent Workplace Matters blog post here.

The right to reinstatement is an important protection for employees in a world where secure employment is becoming a thing of the past and the economy allows employers to justify all sorts of actions that are squeezing their employees. Courts overseeing federally regulated employers should restore the statutory right to reinstatement. And it is high time that all courts applying the common law of wrongful dismissal reconsider their rejection of reinstatement for wrongfully dismissed plaintiffs.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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