The Federal Court Reaffirms the Limits to CLC Adjudicators’ Reinstatement Powers
The Federal Court of Canada’s recent decision in Miawpukek First Nation v. Howse, 2022 FC 1501 reaffirmed the principle that unjust dismissal adjudicators appointed under the Canada Labour Code, RSC 1985, c L-2 (the “CLC”) should not reinstate an employee to a position other than the one they held prior to their dismissal.
Tracy Howse was employed by of Miawpukek First Nation (“MFN”) as a Director, Training and Economic Development (“TEDD”). Over the course of Ms. Howse’s employment, there were concerns about her attitude and behaviour towards certain staff. In December 2018, MFN launched an investigation into a complaint against Ms. Howse and determined that Ms. Howse had engaged in workplace harassment against four employees she was supervising. After reviewing the investigation report and its findings, the MFN terminated Ms. Howse’s employment for cause.
The adjudicator who heard the unjust dismissal complaint set aside the termination and ordered Ms. Howse conditionally reinstated to a position within MFN other than Director, TEDD. MFN sought judicial review of the decision to the Federal Court.
Justice Furlanetto of the Federal Court agreed that there was an unjust dismissal, however, she held that the adjudicator had exceeded his powers under the CLC by ordering Ms. Howse reinstated to a position other than the one she previously held prior to dismissal. In reviewing the jurisprudence, Justice Furlanetto reaffirmed the principle that an adjudicator should only reinstate an employee in the same position he or she held at the time of dismissal. She noted that to carry out an order of reinstatement to a position other than the one held at termination, the employer is required to either “create a new position or free up an existing position by dismissing or transferring the employee already occupying it.” The matter was remitted back to the adjudicator to address the issue of remedy bearing in mind the limitations set out in CLC.
Takeaway for Employers
This is a helpful decision for employers. While CLC adjudicators are granted fairly broad remedial authority pursuant to the CLC, this case reaffirms the limits to that remedial authority, such that an adjudicator should not reinstate an employee to a position other than the one they held prior to the dismissal.