A headline in the National Post today proclaims that a waitress fired for “not smiling enough” was reinstated “by court”. Reminds me of a case I worked on in the 1990s when a Walmart employee was disciplined for clapping off beat during the mandatory morning Walmart chant.
My employment law students should be raising a suspicious eyebrow over that headline. It raises a potential employment law mystery: How could a court reinstate a nonunion waitress with 6 months’ service who was terminated for not smiling enough?
Let’s try to unravel the mystery (input from Quebec employment law experts welcome!).
First some back story to flesh out the mystery.
“Courts” in Canada, even in Quebec, do not generally reinstate employees who have been terminated, even when the reason for termination is completely asinine. There is a handful of common law decisions where courts have reinstated dismissed employees in unique circumstances, but those are exceedingly rare. Courts generally do not enforce specific performance of an employment contract, meaning that they do not order employers to re-employ an employee after the contract has already been terminated. Instead, courts order damages for breach of the employment contract, usually measured by the loss of wages and other amounts that the employee would have earned had the employer provided the employee with the legal required amount of notice of termination. As a general rule, an employer can terminate an employment contract for any or no reason at all, provided they provide the employee with notice of termination.
However, exceptions exist. One exception relates to unionized workplaces. Unions invariably negotiate “just cause” for discipline and discharge clauses into collective agreements and collective bargaining statutes confer authority on labour arbitrators to reinstate unionized employees terminated in contravention of those clauses. So unionized employees do frequently get their jobs back when they are terminated without “just cause”. But most waitresses are non union and the article makes no mention of a union. So we can assume she is not covered by a collective agreement.
Another exception to the general rule that employers are not ordered to reinstate terminated employees in Canada relates to terminations that violate statutes. As explained in Chapter 23 of The Law of Work, there are two types of statutes that provide for reinstatement of terminated employees.
The first type I describe as terminations contrary to public policy. Lots of statutes prohibit employers from terminating employees for certain reasons deemed contrary to public policy. Human rights statutes are an example, which prohibit termination based on certain discriminatory grounds, such as race, religion, gender, age and other “prohibited grounds”. Since a termination based on discriminatory reasons is contrary to public policy, human rights tribunals are given authority to reinstate employees fired for discriminatory reasons.
Similarly, labour relations boards have authority to reinstate employees terminated for supporting unions. And most employment-related statutes include anti-reprisal sections that prohibit employers from terminating employees who attempt to enforce their statutory rights and provide the remedy of reinstatement to enforce these provisions.
The second type of statutory protection prohibits employers from terminating employees without just or good cause (“unjust dismissal provisions”). These provisions are the statutory rough equivalent of the unionized “just cause” protection, but they apply to non-union employees. “Unjust Dismissal” provisions exist in only three Canadian jurisdictions: the federal jurisdiction, Nova Scotia, and you guessed it: Quebec.
Section 124 of Quebec’ Act Respecting Labour Standards prohibits employers from terminating employees with more than 2 years service without “good and sufficient cause” and Section 128 of the statute empowers the Labour Tribunal to reinstate the employee.
When we read the National Post story closely though, it appears that this was not an “unfair dismissal” case at all, because the waitress had only been employed for 6 months. Section 124 does not apply to her.
Therefore, although the story does not make this clear, the decision must be one that falls into the category of “terminations contrary to public policy”—she was terminated as a reprisal for insisting on payment of back wages owed, contrary to Section 122 of an Act Respecting Labour Standards. The Post article notes: “Daunais filed a complaint to the tribunal, claiming she was fired after asking for back pay owed to her”. That makes sense. This was an anti-reprisal case, not a Section 124 unfair dismissal case. I think. The Tribunal (not a court) did not believe the employer’s argument that the employee was fired for having a bad attitude. Rather, the Tribunal accept the employee’s argument that she was terminated for insisting the employer comply with the statutory rules regarding payment of wages.
Issue for Discussion
As noted in this post and more fully discussed in Chapter 23 of The Law of Work, only three Canadian jurisdictions include “unjust dismissal” provisions that require employers (in limited circumstances) to have a valid reason to fire an employee. In all the jurisdictions, nonunion employers do not need to demonstrate any reason for terminating an employee. They just need to provide notice of termination.
Do you think that the other Canadian provinces should follow the lead of Quebec, Nova Scotia, and the federal government and enact “unjust dismissal” provisions?
What are arguments for and against these provisions?