Rejection of complaint - 700-10A-IPG-082

Disclaimer: This page has been prepared for reference only.

Effective date: August 2018

1. Subject

The following guidelines apply to an inspector when considering whether to reject a complaint pursuant to subsection 251.05(1) of Part III of the Canada Labour Code (Code).

A complaint made under section 251.01 may be rejected, in whole or in part, under one or more of the following eight grounds:

  1. the complaint is not within the inspector’s jurisdiction;
  2. the complaint is frivolous, vexatious or not made in good faith;
  3. the complaint has been settled;
  4. there are other means available to the employee to resolve the subject-matter of the complaint that the inspector considers should be pursued;
  5. the subject-matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator;
  6. in respect of a non-monetary complaint, there is insufficient evidence to substantiate the complaint;
  7. 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;
  8. if consideration of the complaint was suspended under subsection 251.02(1) and if, in the inspector’s opinion, the other measures specified in the notice under subsection 251.02(2) were not taken within the specified time period.

2. Background

The Jobs and Growth Act, 2012 introduced a number of amendments to Part III of the Code. The amendments include a complaint mechanism for monetary and non-monetary complaints and the inspector’s power to reject a complaint.

3. Issue

To provide a consistent national approach in the application of the inspector’s power to reject complaints under subsection 251.05(1), while ensuring that the decisions to reject complaints are made in an objective and fair manner.

4. Definitions

Collective Agreement: means an agreement in writing containing terms or conditions of employment of employees, including provisions with reference to rates of pay, hours of work and settlement by a third party of disagreements arising in the application of the agreement, between:

  1. an employer or an employer’s organization acting on behalf of an employer, and
  2. a trade union acting on behalf of the employees in collective bargaining or as a party to an agreement with the employer or employer’s organization (section 166).

Complaint: a document made by an employee or their agent to the Labour Program pursuant to section 251.01 of Part III of the Code.

Complainant: an employee or former employee who has made a complaint to the Labour Program pursuant to section 251.01 of Part III of the Code.

Inspector: any person designated as an inspector by the Minister under subsection 249(1) of Part III of the Code.

Rejected complaint: means a complaint that has been rejected by an inspector pursuant to subsection 251.05(1) of Part III of the Code.

Rejected complaint in part: means an allegation or several allegations as part of a complaint that has been rejected by an inspector pursuant to subsection 251.05(1) of Part III of the Code.

5. Interpretation

Grounds for rejecting a complaint

Subsection 251.05(1) gives inspectors the authority to reject a complaint, in whole or in part.

There are eight grounds by which an inspector may reject, in whole or in part, a complaint made under section 251.01.

A complaint of unjust dismissal made under section 240 cannot be rejected as the rejection authority under the Code only applies to complaints made under section 251.01.

5.1 Complaint is not within the inspector’s jurisdiction [subparagraph 251.05(1)(a)(i)]

An inspector may reject a complaint if the subject-matter of the complaint does not fall within the jurisdiction of the inspector. Complaints that are not within the inspector’s jurisdiction fall into three categories.

Category 1: Employer is not subject to Part III of the Code

This category includes:

(i) Employers who are subject to provincial or territorial jurisdiction

A complaint against an employer who is not subject to federal jurisdiction may be rejected pursuant to subparagraph 251.05(1)(a)(i) when it has been clearly established that the employer is not subject to Part III of the Code.

(ii) Employers who are a federal government department or agency, as defined by the Financial Administration Act

A complaint against an employer who is a federal government department or agency, as defined by the Financial Administration Act (FAA)  Schedules I, I.1 and II, should be rejected as the employer is not subject to Part III of the Code.

Schedule III of the FAA lists Crown corporations that are subject to Part III of the Code.

Category 2: No employer/employee relationship exists

As per section 167 of the Code, Part III of the Code applies where an employer/employee relationship exists.

As part of the investigation of the complaint, an inspector may be required to establish which business is the real employer of the complainant. Refer to IPG-068 – Determining the "Real Employer".

As part of the investigation of the complaint, an inspector may be required to establish if an employer/employee relationship exists to determine if the provisions of the Code apply. Refer to IPG 069 – Determining the Employer/Employee Relationship.

Category 3: The subject-matter of the complaint is not covered by Part III of the Code or the related regulations

This category includes potential allegations that are not covered by Part III of the Code.

While not an exhaustive list, Part III of the Code does not cover the following:

  • reimbursement of road expenses, such as traffic tickets and road tolls;
  • reimbursement of expenses, such as meals and uniforms;
  • layovers;
  • paid sick leave;
  • paid time off for medical appointments;
  • health or meal breaks.

5.2 Complaint is frivolous, vexatious or not made in good faith [subparagraph 251.05(1)(a)(ii)]

An inspector may reject a complaint or an allegation if it is determined to be frivolous, vexatious or not made in good faith.

For a complaint to be rejected on this ground, it is necessary for a complaint to satisfy at least one of the elements.

Definitions

Frivolous: means not serious in content, is of little weight or importance, lacks merit, and has no sound basis in law.

Vexatious: means a complaint brought with inadequate grounds to succeed in order to cause harm to an employer or a director. It is an abuse of process with the intent to aggravate the employer or director.

Not made in good faith: means an act taken without honest intentions with the known intent that there are no legal grounds for the complaint.

To reject a complaint on this ground, the inspector must be able to demonstrate that the complaint:

  1. pertains to issues that are unimportant, petty, silly, or so insignificant as to be a waste of time; (frivolous and/or vexatious)
  2. is without any factual or legal basis or in other words, it lacks merits and is unsupportable in a sense that it has no chance of succeeding; (frivolous)
  3. involves an ulterior motive, such as to harass, annoy or cause harm to the employer; (vexatious)
  4. has been made in bad faith or for an improper purpose such as causing delay or distraction; (not made in good faith)
  5. is an abuse of process (the use of a legal process in an improper or unauthorized manner); (vexatious and/or not made in good faith) or
  6. is scandalous, and has been made with the intent to harass or embarrass the employer. (vexatious)

Example:

Where a complainant intentionally files a duplicate complaint for the exact same allegations covering the exact same period of time. This could be considered as the complainant having an ulterior motive to harass, annoy or cause harm to the employer; and also could be considered an abuse of process. In this case the second complaint may be rejected.

5.3 Complaint settled (subparagraph 251.05(1)(a)(iii))

An inspector may reject a complaint if the subject-matter of the complaint has already been settled between the parties. This includes a settlement that was reached as a result of assistance provided by an inspector, pursuant to section 251.03 of the Code.

For a complaint to be rejected under this ground, the inspector must obtain written evidence that a settlement was reached (for example, minutes of settlement or settlement agreement) and confirm that the terms of the agreement were satisfied.

A complaint filed under section 251.01 should not be rejected if the contents of the settlement do not appear to clearly meet the minimum standards of Part III of the Code and its Regulations.

However, it may be difficult to assess whether the minimum requirements of the Code have been met when the parties agree, in writing, on a comprehensive settlement. In fact, in this situation, the amounts related to the allegations are not specified because the comprehensive settlement is intended to put an end to the litigation as a whole. Considering that the parties have signed the agreement that settles the complaint filed under section 251.01, the inspector must reject the complaint.

In the context of a settlement obtained after conciliation of a complaint of unjust dismissal, but whose settlement also relates to the monetary complaint, if the settlement stipulates that at the signing of the agreement the complaints (monetary and unjust dismissal) are withdrawn, the inspector must acknowledge the withdrawal and close the file. He must not reject the complaint.

Failure to obtain written evidence of a settlement of the complaint under section 251.01 that satifies the principles set out in this IPG, the inspector must not reject the monetary complaint and proceed with the investigation.

5.4 Other means available to the employee to resolve the complaint that should be pursued [subparagraph 251.05(1)(a)(iv)]

An inspector may reject a complaint if it has been determined that other means are available to the complainant and that in the inspector’s opinion these means should be pursued to resolve the subject-matter of the complaint.

If considering rejecting a complaint under this ground, suspension of the complaint under section 251.02 of the Code should be considered as the primary option until the other means available to the complainant have been pursued and concluded.

In order to reject a complaint, the inspector should demonstrate that other means are not only available, but that those other means are appropriate for resolving the complaint.

The inspector should examine beyond the initial allegations of a complaint and assess the underlying issues of the complaint, or the underlying subject-matter.

If the underlying subject-matter is related to a dismissal of an employee subject to a collective agreement, it is possible in some cases that the dismissal may have an impact on monetary complaint allegations (such as termination and severance pay). If the employee has been dismissed and the collective agreement contains provisions to challenge the dismissal, the employee should be informed about filing a grievance with their union if they have not already done so.

The monetary complaint allegations related to the dismissal should be rejected pursuant to subparagraph 251.05(1)(a)(vii) in that the inspector is satisfied that there are other means available to the complainant to resolve the complaint that should be pursued.

Example:

An employee subject to a collective agreement files a complaint for termination and severance pay. Upon investigation, the employer’s response states that the employee was dismissed. There was no termination such as a lack of work or discontinuance of a function. It appears that in reality the employee is challenging the dismissal by filing a complaint for termination and severance pay. Since the underlying subject-matter of the complaint is to challenge the dismissal, the allegations related to termination and severance pay should be rejected pursuant to subparagraph 251.05(1)(a)(iv) since there are other means available to the employee to resolve the real subject-matter of the complaint. The complainant has recourse to challenge the dismissal through their collective agreement.

If other monetary allegations exist that are not related to the dismissal, and upon review of the collective agreement, the provisions for the rights and benefits regarding the allegations are less than what the Code provides, the inspector should proceed with the investigation of these allegations.

In the event that the union does not pursue the complainant’s dismissal grievance, the complainant should be advised to pursue the matter with the Canada Industrial Relations Board.

5.5 Subject-matter of the complaint adequately dealt with by court, tribunal, arbitrator or adjudicator [subparagraph 251.05(1)(a)(v)]

An inspector may reject a complaint if the subject-matter of the complaint has been adequately dealt with through recourse obtained before a court, tribunal, arbitrator or adjudicator.

In order to determine if the subject-matter of the complaint has been “adequately dealt with”, the inspector must ensure that the process undertaken by the court, tribunal, arbitrator or adjudicator proceeded to its conclusion, and that the decision rendered addressed the subject-matter of the complaint.

Examples:

  1. A grievance was first filed by the complainant with their union. The grievance was quickly dealt with through the collective agreement’s third party resolution process and a decision rendered. However, the complainant subsequently made a complaint for the same issue. The complaint may be rejected since the subject-matter of the complaint has been adequately dealt with through the collective agreement’s third party resolution process.
  2. A monetary complaint under suspension has been dealt with by an adjudicator during an adjudication of an unjust dismissal complaint.

5.6 Non-monetary complaint – insufficient evidence to substantiate complaint [subparagraph 251.05(1)(a)(vi)]

An inspector may reject a non-monetary complaint if the inspector determines that there is insufficient evidence to continue to investigate the complaint.

Insufficient evidence means an absence or lack of testimonials, documents, records, or a full set of facts gathered from the employer and employee which do not support a finding that a violation of Part III of the Code or its Regulations exists.

Employers are required to make, retain, or provide records, except where otherwise stated (ref. section 24 of the Canada Labour Standards Regulations). Therefore, when assessing whether a complaint should be rejected on this ground, the inspector should not shift this requirement to the employee. The assessment and evaluation of evidence for a non-monetary complaint may be a difficult process, and if required, inspectors should consult a technical advisor when considering rejecting a complaint on these grounds.

Example:

A complaint is made alleging a violation of maximum hours of work. The complainant alleged that the employer required the complainant to work more than 48 hours a week. Evidence obtained by the inspector confirms the employer required the employee to work more than the maximum of 48 hours, but the additional hours were required for emergency repairs to the employer’s machinery, and had been reported to the Regional Director on time.

In this case the complaint should not be rejected pursuant to subparagraph 251.05(1)(a)(vi) because the evidence gathered clearly indicates that the employer is in compliance with the Code.

5.7 Collective agreement covers subject-matter of the complaint and provides third party dispute resolution [subparagraph 251.05(1)(a)(vii)]

The conditions outlined in subparagraph 251.05(1)(a)(vii) apply where an employee is governed by a collective agreement and files a complaint under section 251.01 of the Code.

An inspector may reject a complaint, in whole or in part, if the following three conditions are met:

  1. the complainant is subject to the collective agreement;
  2. the subject-matter of the complaint is covered by the collective agreement; and
  3. the collective agreement provides a third party dispute resolution process.

Should any of the three conditions not be met, the complaint should not be rejected.

The interpretation for “the subject-matter of the complaint is covered by the collective agreement” is as follows:

A collective agreement should not provide rights and benefits less than what the Code provides.

If the allegation raised in the complaint is covered in the collective agreement but the rights and benefits of the collective agreement for that allegation is less than what the Code provides, the inspector should not reject the complaint. The inspector should proceed with an investigation of the complaint, or if a grievance was filed by the unionized employee, suspend the complaint pending the results of the third party dispute resolution process.

Example:

A complaint is made alleging overtime owing. The complainant is subject to a collective agreement and has recourse for any overtime issues through the collective agreement’s grievance process. The overtime provisions contained in the collective agreement is equivalent to that contained in the Code. The inspector may reject the complaint for overtime as the collective agreement covers the subject-matter of the complaint and provides a third party dispute resolution process.

However, if the overtime provisions contained in the collective agreement is less than that contained in the Code, the complaint for overtime should be investigated if no grievance was filed.

5.8 Complaint suspended, measures not taken [paragraph 251.05(1)(b)]

An inspector may suspend a complaint, in whole or in part, pursuant to subsection 251.02(1) if an inspector is satisfied that the complainant must take certain measures within a specific time period before the inspector can consider the complaint.

If the inspector is satisfied that the employee did not take the required measures within the specified time period, the employee will be notified in writing that the measures were not taken within the specified time period and that the complaint is no longer suspended and will be rejected.

Brenda Baxter
Director General
Workplace Directorate
Employment and Social Development Canada – Labour Program

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