PART IIIStandard Hours, Wages, Vacations and Holidays (continued)
DIVISION XIVUnjust Dismissal (continued)
Marginal note:Civil remedy
246 (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.
Marginal note:Application of section 189
(2) Section 189 applies for the purposes of this Division.
- 1977-78, c. 27, s. 21
DIVISION XIV.1Complaints Relating to Reprisals
Marginal note:Complaint to Board
246.1 (1) Any employee may make a complaint in writing to the Board if they believe that their employer has taken any of the following reprisals against them:
(a) the employer has taken action against the employee in contravention of subsection 173.01(5), 174.1(4) or 177.1(7) or of section 208, 209.3, 238, 239, 239.1 or 247.96;
(a.1) [Repealed, 2021, c. 26, s. 25]
(b) dismissing, suspending, laying off, or demoting the employee, imposing a financial or other penalty on the employee, or otherwise taking any disciplinary action against the employee, because the employee
(i) has made a complaint under this Part, other than a complaint under section 240,
(ii) has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee to the Head or provided any other assistance to the Minister or the Head in the exercise or performance of the Minister’s or the Head’s powers, duties and functions under this Part
(ii.1) has provided information regarding the wages, hours of work, annual vacation or conditions of work of any employee or provided any other assistance to an external adjudicator or a member of the Board in the exercise or performance, in accordance with subsections 12.001(2) or 14(5), of the powers, duties or functions conferred on the Board by this Part,
(iii) has testified or is about to testify in a proceeding taken or an inquiry held under this Part, or
(iv) has exercised, or sought to exercise, any right conferred on the employee by this Part;
(c) taking into account the fact that the employee has taken any of the actions referred to in subparagraphs (b)(i) to (iv) in any decision with respect to the promotion or training of the employee; or
(d) threatening to take any of the reprisals referred to in paragraph (b) or (c).
(2) An employee shall not make a complaint under subsection (1) if they have made a complaint that is based on substantially the same facts under either subsection 240(1) or 247.99(1), unless that complaint has been withdrawn.
Marginal note:Time for making complaint
(3) A complaint referred to in subsection (1) shall be made to the Board not later than 90 days after the day on which the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint.
Marginal note:Burden of proof
(4) A complaint made under subsection (1) is itself evidence that the reprisal was actually taken and, if a party to the complaint proceedings alleges that the reprisal was not taken, the burden of proof is on that party.
Marginal note:Suspension of complaint
246.2 (1) If the Board is satisfied that the employee must take measures before the Board may continue to deal with the complaint made under subsection 246.1(1), it may, at any time, suspend consideration of the complaint, in whole or in part.
(2) If the Board suspends a complaint, the Board shall notify the employee in writing and specify in the notice
(a) the measures that the employee must take; and
(b) the period of time within which the employee must take those measures.
Marginal note:End of suspension
(3) The suspension ends when, in the Board’s opinion, the measures specified in the notice have been taken.
Marginal note:Rejection of complaint
246.3 (1) The Board may reject a complaint made under subsection 246.1(1), in whole or in part,
(a) if the Board is satisfied that
(i) the complaint is not within its jurisdiction,
(ii) the complaint is frivolous, vexatious or not made in good faith,
(iii) the complaint has been settled in writing between the employer and the employee,
(iv) there are other means available to the employee to resolve the subject matter of the complaint that the Board considers should be pursued,
(v) the subject matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator, or
(vi) in respect of a complaint made by an employee who is subject to a collective agreement, the collective agreement covers the subject matter of the complaint and provides a third party dispute resolution process; or
(b) if consideration of the complaint was suspended under subsection 246.2(1) and if, in the Board’s opinion, the measures specified in the notice under subsection 246.2(2) were not taken within the specified time period.
Marginal note:Notice of rejection of complaint
(2) If the Board rejects a complaint, it shall notify the employee in writing, with reasons.
Marginal note:Board orders
246.4 If the Board determines that a complaint under subsection 246.1(1) is justified, the Board may, by order, require the employer to cease engaging in or to rescind the reprisal and, if applicable, to
(a) permit the employee who has made the complaint to return to the duties of their employment;
(b) reinstate the employee;
(c) pay to the employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the reprisal, have been paid by the employer to the employee;
(d) pay to the employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer; and
(e) do any other thing that the Board considers equitable for the employer to do to remedy or counteract any consequence of the reprisal.
Marginal note:Decisions final
246.5 (1) Every decision of the Board made under this Division is final and shall not be questioned or reviewed in any court.
Marginal note:No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under this Division.
Marginal note:Enforcement of orders
246.6 (1) Any person affected by an order of the Board under section 246.4, or the Head on the request of such a person, may, after 14 days from the day on which the order is made, or from the day provided in the order for compliance, whichever is later, file in the Federal Court a copy of the order, exclusive of reasons.
(2) On filing in the Federal Court under subsection (1), an order of the Board shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken in respect of it, as if the order were a judgment obtained in that Court.
246.7 [Repealed, 2017, c. 20, s. 356]
DIVISION XVPayment of Wages
Marginal note:Payment of wages
247 Except as otherwise provided by or under this Part, an employer shall
(a) pay to any employee any wages to which the employee is entitled on the regular pay-day of the employee as established by the practice of the employer; and
(b) pay any wages or other amounts to which the employee is entitled under this Part within thirty days from the time when the entitlement to the wages or other amounts arose.
- 1977-78, c. 27, s. 21
DIVISION XV.1[Repealed, 2018, c. 22, s. 16]
247.1 [Repealed, 2018, c. 22, s. 16]
247.2 [Repealed, 2018, c. 22, s. 16]
247.3 [Repealed, 2018, c. 22, s. 16]
247.4 [Repealed, 2018, c. 22, s. 16]
DIVISION XV.2Leave of Absence for Members of the Reserve Force
Marginal note:Entitlement to leave
247.5 (1) An employee who is a member of the reserve force and has completed at least three consecutive months of continuous employment with an employer — or a shorter period that is prescribed for a class of employees to which the employee belongs — is entitled to and shall be granted a leave of absence from employment to take part in the following operations or activities:
(a) an operation in Canada or abroad — including preparation, training, rest or travel from or to the employee’s residence — that is designated by the Minister of National Defence;
(b) an activity set out in the regulations;
(c) Canadian Armed Forces military skills training;
(d) training that they are ordered to take under paragraph 33(2)(a) of the National Defence Act;
(e) duties that they are called out on service to perform under paragraph 33(2)(b) of the National Defence Act;
(f) service in aid of a civil power for which they are called out under section 275 of the National Defence Act; or
(g) treatment, recovery or rehabilitation in respect of a physical or mental health problem that results from service in an operation or activity referred to in this subsection.
Marginal note:Maximum of 24 months
(1.1) Leaves taken by an employee under paragraphs (1)(a) to (d) can total no more than an aggregate of 24 months in any 60-month period.
(1.2) Subsection (1.1) does not apply to a leave of absence taken as a result of a national emergency, within the meaning of the Emergencies Act.
Marginal note:Designation and delegation
(2) The Minister of National Defence may designate an operation for the purposes of paragraph (1)(a) or may authorize another person to do so.
(3) A designation takes effect on the day on which it is made or on an earlier or later day that is fixed by the Minister of National Defence or the other person. The Minister of National Defence or the other person may fix the day on which the designation ceases to be in effect.
(4) Despite subsection (1), an employee is not entitled to a leave of absence under this Division if, in the opinion of the Head, it would adversely affect public health or safety or would cause undue hardship to the employer if the employee, as an individual or as a member of a class of employees, were to take leave.
Marginal note:Notice to employer
247.6 (1) An employee who takes a leave of absence under this Division shall
(a) unless there is a valid reason for not doing so, give at least four weeks’ notice to the employer before the day on which the leave is to begin; and
(b) inform the employer of the length of the leave.
Marginal note:If there is a valid reason
(2) If there is a valid reason for not providing notice in accordance with paragraph (1)(a), the employee shall notify the employer as soon as practicable that the employee is taking a leave of absence.
Marginal note:Change in length of leave
(3) Unless there is a valid reason for not doing so, an employee who takes a leave of absence under this Division shall notify the employer of any change in the length of the leave at least four weeks before
(a) the new day on which the leave is to end, if the employee is taking a shorter leave; or
(b) the day that was most recently indicated for the leave to end, if the employee is taking a longer leave.
Marginal note:In writing
(4) Unless there is a valid reason for not doing so, any notice or other information to be provided by the employee to the employer under this section is to be in writing.
- 2008, c. 15, s. 1
Marginal note:Request for proof
247.7 (1) Subject to subsection (2), if the employer requests proof that a leave of absence is taken under this Division, the employee shall provide the employer with the prescribed document, if any, or with a document that is approved by the Chief of the Defence Staff who was appointed under subsection 18(1) of the National Defence Act.
Marginal note:No prescribed or approved document
(2) If no document is prescribed, or approved by the Chief of the Defence Staff, the employee shall, on request, provide the employer with a document from the employee’s commanding officer specifying that the employee is taking part in an operation or activity referred to in paragraphs 247.5(1)(a) to (g).
(3) Unless there is a valid reason for not doing so, the employee shall provide the document referred to in subsection (1) or (2) within three weeks after the day on which the leave begins.
- 2008, c. 15, s. 1
- Date modified: