On July 29, 2019, certain provisions of the Budget Implementation Act 2017, No.1 (introduced as Bill C-44) came into force. The new law streamlines the dispute resolution process under the Canada Labour Code in federally regulated workplaces by transferring adjudicative functions under the Employment and Social Development Canada – Labour Program to the Canada Industrial Relations Board (CIRB).
This transfer impacts:
- Unjust dismissal complaints, Section 240 of the Canada Labour Code: The CIRB now has responsibility for adjudicating unfair dismissal complaints. This means that complaints filed on or after July 29, 2019, will be referred by the Labour Program to the CIRB for resolution instead of an adjudicator. A complaint of unjust dismissal must first be filed with the Labour Program of Employment and Social Development Canada (ESDC). The complaint must be filed within 90 days of the date of dismissal. A Labour Program inspector will try to help the employee and employer through mediation, but if the complaint is not settled by the parties with the help of the Labour Program inspector, the complainant can request in writing using “A Request for Adjudication–Unjust Dismissal Complaint Form” that their complaint be referred to the CIRB for adjudication. This request for adjudication must be made within 30 days of receiving the letter from the Labour Program. For more information on the process, read, No. 15–Adjudication of Unjust Dismissal Complaints.
- Wage recovery appeals, Section 251.1 of the Canada Labour Code: While wage recovery complaints and requests for review must be filed with the Labour Program, appeals filed after July 29, 2019, will be processed by the CIRB. Appeals filed directly with the CIRB must be made in writing and include reasons for the appeal. Therefore, a wage recovery complaint and review (if applicable) must be filed with the Labour Program, not with the CIRB. Once a review or an appeal has been requested, the Minister can treat a request for review as an appeal of the order or notice, and refer the matter to the CIRB, without first undertaking a review. A person affected by a review decision made under Part III of the Code may appeal directly to the CIRB. For more on the process, read No. 18–Wage Recovery Appeals.
- Complaints relating to reprisals, Section 246.1 of the Canada Labour Code: The CIRB has established a new complaint mechanism for allegations of employer reprisals taking place on or after July 29, 2019, with written reprisal complaints now being directed to the CIRB. Section 246.1(1) provides that an employee may make a complaint in writing to the Canada Industrial Relations Board if they believe that their employer has taken any reprisals against them in contravention of sections 173.01(5), 174.1(4), 177.1(7), 182.2(3), 203.3(3), 208, 209.3, 238, 239, 239.1 or 247.96 of the Code. In general, these sections of the Code deal with issues such as work schedules, the right to refuse overtime, the right to request flexible work arrangements, requesting a review of wage rates, pregnancy, garnishment, sick leave, work-related illness and injuries, and leaves of absence for members of the reserve force. It is strongly recommended that an employee use the “Reprisal Complaint form”. For more on the process read No. 14–Section 246.1 Reprisal Complaints.
In addition, on July 22, 2019, an Order-in-Council PC Number: 2019-1110 was issued that set July 29, 2019, as the date that a number of other changes to part II of the Canada Labour Code would take effect. The CIRB’s authority will also extend to Occupational Health and Safety Appeals.
This means that effective July 29, 2019, appeals that were previously filed with the Occupational Health and Safety Tribunal Canada (part of the Employment and Social Development Canada) must now be filed with the Canada Industrial Relations Board (previously, the CIRB determined reprisal complaints taken under section 133 of Part II of the Canada Labour Code, but appeals of decisions and directions by health and safety officers were adjudicated by Appeals Officers at the Occupational Health and Safety Tribunal).
The transfer impacts and includes the following:
- All OHS appeals filed under the Code can be mediated, and employers may wish to consider the availability of mediation when considering a response to a direction.
- The Code now provides that a proceeding arising under Part II may be determined by the Chairperson, a Vice-Chairperson or an appointed part-time member appointed alone, and that one of these people is deemed to be a panel. In light of these provisions and the historical adjudication of OHS appeals by a single person, it seems most probable that appeals will be decided by a one-person panel. Also, to provide a degree of flexibility to prevent delays, an external adjudicator may be appointed by the Chair of the CIRB if she or he considers it advisable. The external adjudicator would have all of the powers, duties and functions of the CIRB with respect to the matter for which they have been appointed.
- The Notice of Appeal required to start an appeal and the application for a stay of the direction remain unchanged – except that they have been rebadged for the CIRB. However, these documents must now be sent to the CIRB instead of the OHSTC. In most cases, this is to be done electronically through the CIRB’s e-filing portal.
- Proceedings will now be governed by the procedural rules of the CIRB.
More information on the types of matters the CIRB deals with under Part II of the Canada Labour Code related to Occupational Health and Safety legislation click here.
To understand the complaint for reprisal against an employer under section 133 of the Code, alleging a contravention of section 147 of Part II of the Canada Labour Code, read, No. 13–Complaints of Reprisals for Exercising Rights Pursuant to Occupational Health and Safety Legislation.
What should employers do?
Employers and Counsel should review the new requirements above and ensure all new appeals are directed to the CIRB.