Unjust dismissal - Mediation process

Mediation assistance is available to employers and complainants involved in an unjust dismissal complaint under Division XIV of the Canada Labour Code.

Every unjust dismissal complaint must meet the criteria set out in Division XIV of the Code. Unjust dismissal provisions outline who is entitled to protection and how to file a complaint.

This publication provides answers to common questions from federally regulated complainants and employers about mediation sessions: what they are, why they are used, how they work, and who is involved in the process.

Note: The Canada Industrial Relations Board (CIRB) will hear your unresolved unjust dismissal complaint if it was filed on or after July 29, 2019.

On this page

1. What is mediation?
2. What are the benefits of attending a mediation session?
3. What makes mediation a useful approach?
4. Who leads the mediation session?
5. How does mediation work?
6. Do I have to sign anything prior to the mediation session?
7. What do I bring to the mediation session?
8. Can I bring my friend, a member of my family or legal counsel to the mediation session?
9. What happens if the mediation is successful?
10. Who writes the settlement document?
11. What if the dispute cannot be resolved at the mediation session?
12. Can I refuse a mediation session?

Summary

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Unjust dismissal - Mediation process [PDF - 286 KB]

1. What is mediation?

Mediation is a managed process used to help parties resolve conflict. A mediation session brings the complainant and the employer together with a neutral third party, called a mediator. The mediator provides a positive, controlled environment and helps both parties see opportunities for understanding, problem solving and resolution.

2. What are the benefits of attending a mediation session?

Mediation guides the complainant and the employer to a resolution they create together.

Mediation saves time. The mediation sessions are arranged following the receipt of a complaint of unjust dismissal and generally last 2 to 4 hours, providing parties with an opportunity to seek resolution and return to normal activities in a timely manner.

Mediation saves money. A mediation session offers complainants and employers an informal and low-cost alternative to adjudication.

Mediation sessions are confidential.

Mediation aims to support a mutually acceptable outcome that reflects the needs of both parties.

3. Why makes mediation a useful approach?

The complainant and the employer control the outcome of their dispute - unlike litigation or adjudication, where an outside party imposes a decision.

Since a mediation session is confidential, it allows honest and open conversation between the parties. This improves communication, genuine understanding of each other's interests and encourages mutually beneficial outcomes.

Mediation encourages future cooperation. This is particularly important in small communities.

4. Who leads the mediation session?

A Labour Affairs Officer with specialized training and experience in mediation will lead the session.

5. How does mediation work?

To achieve resolution, both parties must understand the issues in dispute and each other's need. The mediator will structure the discussions, organize the information, assist the parties in expressing their concerns and identify opportunities for agreement.

The mediator helps the parties communicate, examine their positions, achieve understanding, explore creative solutions and reach a mutually acceptable resolution.

The mediator does not determine the outcome. The parties work together to reach a resolution.

The mediator is neutral and cannot make a ruling on whether the dismissal was just or unjust.

6. Do I have to sign anything prior to the mediation session?

All participants in the mediation session must sign a confidentiality agreement to ensure that matters discussed remain confidential.

7. What do I bring to the mediation session?

First and foremost, come prepared with an open mind. This is your opportunity to express your perspective and to listen to the other party's point of view. Be prepared to consider not only your own needs and interests, but also those of the other party.

You may also want to bring documentation that is relevant to the dispute to support your position.

8. Can I bring my friend, a member of my family or legal counsel to the mediation session?

Yes, you may bring someone with you for support. However, the discussion will be between you and the other party.

Both parties must have decision-making powers and the authority to commit to an agreement.

9. What happens if the mediation session is successful?

A successful mediation session results in a settlement agreement.

The settlement document is signed by the parties and is consider a legal document.

The settlement document is confidential and is retained by both parties to the agreement.

It is important to note that the parties must ensure that any settlement complies with their legal obligations under applicable federal and provincial legislation. More detailed information may be obtained from local government authorities.

10. Who writes the settlement document?

The complainant and the employer write the settlement document. The mediator will assist if required.

11. What if the dispute cannot be resolved at the mediation session?

If a resolution is not achieved, the complainant retains the right to make a written request to the Head of compliance and enforcement to:

• appoint an adjudicator for complaints filed before July 29, 2019
• referred to the Canada Industrial Relations Board (CIRB) for complaints filed on or after July 29, 2019

All documents obtained during the mediation process are confidential and will not be disclosed to any other organization.

The adjudicator or the CIRB will consider the information provided by both parties and decide whether the dismissal was just or unjust.

The adjudicator or the CIRB's decision is final. Written decisions are generally made public.

12. Can I refuse a mediation session?

Attending a mediation session is voluntary. The employer and the complainant are invited to indicate whether they wish to participate, and mediation will proceed only if both parties agree.

If the mediation session is declined by either party, the unjust dismissal complaint is assigned to a Labour Affairs Officer. The Labour Affairs Officer endeavours to negotiate a settlement with the parties through separate communications including mail, email, telephone and in-person interviews. Some people are more comfortable with this process even though it generally takes much longer to achieve a settlement.

If a settlement cannot be reached, the complainant may request the appointment of an adjudicator or that the complaint be referred to the CIRB for a decision.

Summary

A mediation session is confidential.

A mediation session provides the complainant and the employer with an opportunity to meet and resolve their dispute with the assistance of an experienced and neutral third party.

Mediation creates an opportunity to achieve a fair, reasonable and timely resolution that meets the needs of both parties.