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Rejection of complaint – IPG-082

Effective date: April 1, 2014

Revised date: June 20, 2024

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Subject

This Interpretation, Policy and Guideline (IPG) applies when considering the rejection of a complaint pursuant to subsection 251.05(1) of Part III of the Canada Labour Code (Code).

Note: “employees” also includes “interns”. Student interns are subject to the interpretation of this IPG, where applicable.

The Head of Compliance and Enforcement (Head) may reject a complaint made under section 251.01, in whole or in part, under one or more of the following grounds:

  • the complaint is not within the Head’s jurisdiction
  • the complaint is frivolous, vexatious or not made in good faith
  • the employer and employee have settled the complaint in writing
  • there are other means available to the employee to resolve the subject-matter of the complaint that the Head considers should be pursued
  • the subject-matter of the complaint has been adequately dealt with through recourse obtained before a:
    • court
    • tribunal
    • Arbitrator or
    • Adjudicator
  • in respect of a non-monetary complaint, there is insufficient evidence to substantiate the complaint
  • 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. Note: this ground for rejection is not applicable to a student intern complaint. This is because a student intern would not be subject to a collective agreement
  • if consideration of the complaint was suspended under subsection 251.02(1) and, in the Head’s opinion, the other measures specified in the notice under subsection 251.02(2) were not taken within the specified time period
  • if the Head is satisfied that the employee did not respond to the notice of pending abandonment in writing within 30 days

Background

The Jobs and Growth Act, 2012 introduced a number of changes to Part III of the Code. The changes include:

  • a complaint mechanism for monetary and non-monetary complaints, and
  • the power to reject a complaint

Issue

  • To provide a consistent national approach in the application of the power to reject complaints under subsection 251.05(1), and
  • Ensure that the Head makes objective and fair decisions when rejecting complaints

Definitions

Collective Agreement: an agreement in writing containing terms or conditions of employment of employees. This includes provisions with reference to:

  • rates of pay
  • hours of work and
  • settlement by a third party of disagreements

The agreement must be between:

  • an employer or an employer’s organization acting on behalf of an employer, and
  • 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 written document alleging contraventions of Part III of the Code that an employee or their agent files with the Labour Program pursuant to section 251.01 of Part III of the Code.

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

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

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

Interpretation

Grounds for rejecting a complaint

Subsection 251.05(1) gives the Head the authority to reject a monetary or non-monetary complaint, in whole or in part.

There are 9 grounds under which a complaint made under section 251.01 can be rejected in whole or in part.

A complaint of unjust dismissal made under section 240 and a complaint of genetic testing made under subsection 247.99(1) cannot be rejected by the Head. The Head’s rejection authority under section 251.05(1) of the Code only applies to complaints made under section 251.01.

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

The Head may reject a complaint if the subject-matter of the complaint does not fall within their jurisdiction. These complaints fall into 3 categories:

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

This category includes:

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.

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. This is because 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, it may be necessary 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, it may be necessary 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 a complete list, Part III of the Code does not cover the following:

  • layovers
  • paid bereavement leave for an aunt or uncle who does not permanently reside with the employee
  • sales tax (for example, Harmonized Sales Tax – HST)

This category also includes potential allegations that are not covered by the Standards for Work-Integrated Learning Activities Regulations (SWILAR) for student intern complaints. Student interns are entitled to certain labour standards protections as prescribed by the Regulations. The Head may reject complaints regarding matters that are not covered by the regulations.

Example: The Head may reject a student intern complaint including allegations of non-payment of wages under section 247 of the Code in part because student interns who are subject to the SWILAR are not entitled to wage-related protections.

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

A complaint or an allegation may be rejected 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 a complaint made without honest intentions with the knowledge that there are no legal grounds for the complaint.

To reject a complaint on this ground, it must be demonstrated that the complaint:

  • pertains to issues that are unimportant, petty, silly, or so insignificant as to be a waste of time (frivolous and/or vexatious)
  • is without any factual or legal basis. In other words, it lacks merits and is unsupportable in a sense that it has no chance of succeeding (frivolous)
  • involves an ulterior motive, such as to harass, annoy or cause harm to the employer (vexatious)
  • has been made in bad faith or for an improper purpose such as causing delay or distraction (not made in good faith)
  • 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
  • is scandalous, and the complainant made the complaint 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. It could also be considered an abuse of process. In this case the second complaint may be rejected.

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

A complaint may be rejected if the parties have already settled the subject-matter of the complaint in writing. This includes reaching a settlement as a result of assistance provided, pursuant to section 251.03 of the Code.

For a complaint to be rejected under this ground, the Head must obtain written evidence that a settlement was reached. For example, minutes of settlement or settlement agreement. They must also 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. This is 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 complaint must be rejected.

In cases where:

  • settlement is obtained after conciliation of a complaint of unjust dismissal or genetic testing
  • settlement also relates to the monetary complaint, and
  • settlement stipulates that the complaints (monetary and unjust dismissal or genetic testing) are withdrawn at the signing of the agreement

then, the withdrawal must be acknowledged and closed. The complaint must not be rejected in this circumstance.

If there is no written evidence confirming that the complaint was settled, the monetary complaint must not be rejected.

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

A complaint may be rejected if it is determined that other means are available to the complainant. For example, another government body, such as the Canadian Human Rights Commission, has the authority to deal with the complaint, or the complainant is subject to a collective agreement.

Prior to the rejection of a complaint on 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, it is necessary to demonstrate that other means are not only available, but that those other means are appropriate for resolving the complaint. An example of this would include a complaint regarding a third-party disclosing the results of an employee’s genetic test without consent. Although this is prohibited under the Code, complainants cannot file these complaints with the Labour Program. Instead, they must file these complaints with a provincial Privacy Commissioner or the Privacy Commissioner of Canada, as appropriate.

The Head should examine beyond the initial allegations of a complaint and assess 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)(iv) when the Head is satisfied that there are other means available to the complainant to resolve the complaint that they should pursue.

Example:

An employee subject to a collective agreement files a complaint for termination and severance pay. Upon investigation, the employer alleges 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). This is because 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 the rights and benefits in the collective agreement for those allegations are not as favourable as the rights and benefits provided by the Code, an investigation of the allegations should be conducted.

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.

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

A complaint may be rejected if the subject-matter of the complaint has been adequately dealt with through recourse obtained before the following:

  • a court
  • a tribunal
  • an Arbitrator, or
  • an Adjudicator

In order to determine if the subject-matter of the complaint has been “adequately dealt with”, the Head must ensure that the process undertaken by the court, tribunal, Arbitrator or Adjudicator proceeded to its conclusion. They must also ensure the decision rendered addressed the subject-matter of the complaint.

Examples:
  • 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 collective agreement’s third party resolution process adequately dealt with the subject-matter of the complaint
  • A monetary complaint under suspension has been dealt with by the Canada Industrial Relations Board as part of a related complaint of:
    • unjust dismissal
    • genetic testing, or
    • reprisal

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

A non-monetary complaint may be rejected if it is determined 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 contravention of Part III of the Code or its Regulations exists.

Employers are required to make, retain, or provide records, except where otherwise stated (section 24 of the Canada Labour Standards Regulations).

Therefore, when assessing whether a complaint should be rejected on this ground, this requirement should not be shifted to the employee. The assessment and evaluation of evidence for a non-monetary complaint may be a difficult process.

Example:

An employee makes a complaint alleging that their employer verbally reprimanded them, contrary to subsection 177.1(7) of Part III of the Code, for requesting a flexible work arrangement. As per subsection 177.1(1) of Part III of the Code, the employee asked to change their work location to be allowed to work from home two days per week. The employer denied the employee’s request in writing because it would have a detrimental impact on its ability to meet customer demand. The employer’s written decision did not reference the alleged verbal reprimand. In addition, the employer denies disciplining the employee, and there is no documentary evidence or witnesses to prove that the employee was verbally reprimanded.

This non-monetary complaint can be rejected pursuant to subparagraph 251.05(1)(a)(vi) as there is insufficient evidence to substantiate that the employee was disciplined because they requested a flexible work arrangement.

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.

A complaint may be rejected, in whole or in part, if the following three conditions are met:

  • the complainant is subject to the collective agreement
  • the collective agreement covers the subject-matter of the complaint, and
  • the collective agreement provides a third party dispute resolution process

When any of these three conditions are not met, the complaint must be investigated.

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

A collective agreement must provide rights and benefits that are at least as favourable as the rights and benefits provided by the Code.

If the collective agreement covers the allegation raised in the complaint, but the rights and benefits in the collective agreement for that allegation are not as favourable as the rights and benefits provided by the Code, the complaint must not be rejected. An investigation should be conducted. If a grievance was filed by the unionized employee, the complaint will be suspended pending the results of the third party dispute resolution process.

Example:

An employee makes a complaint 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 are equivalent to the overtime provisions contained in the Code. The complaint for overtime may be rejected because 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 are not as favourable as the overtime provisions contained in the Code, the complaint for overtime should be investigated as long as a grievance was not filed.

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

A complaint may be suspended at any time, in whole or in part, pursuant to subsection 251.02(1) if the Head is satisfied that the complainant must take certain measures within a specific time period before the complaint can be dealt with.

If the Head is satisfied that the employee did not take the required measures within the specified time period, the complaint can be rejected.

Complaint abandoned, no response from employee [paragraph 251.05(1)(c)]

The complainant may be issued a letter requiring communication if:

  • they do not reply to a written communication within a reasonable period of time, and
  • at least 30 days have elapsed from the date the complaint was received by the Labour Program

The letter will advise that they have 30 days to indicate, in writing, that they wish to pursue their complaint. If no response is received, the complaint may be rejected.

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