Generally, reinstatement is not a remedy available at common law. However, this remedy may be available as per statute or collective bargaining agreement. For obvious reasons, reinstatement is not a popular remedy: it would create tension and awkwardness in the workplace.
Confidential employees are excluded from collective bargaining because they might be able to give the union access to matters that the employers do not wish them to know about such as bargaing strategy, grievances, etc. (Canadian Union of Bank Employees v. Nova Scotia). That being said, confidential employees will only be excluded if there is a demonstrated conflict of interest (see test).
Managers are usually excluded from collective bargaining as it is a fundamental premise of labour law that there is a conflict of interest between management and workers (Children’s Aid Society). The most important factors in determining if an individual is a manager are: the power to discipline, the power to hire, promote, demote, and grant wage increases (Children’s Aid). In addition we look to see the discretion exercised by these individuals (Quebec Telephone), being sure to distinguish whether the discretion exercised is “real” discretion, or just implementation of a rubric or policy manual.
Some statutes exclude certain professional employees from collective bargaining, on the basis that these employees already enjoy a privileged economic position. Traditionally, public employees were excluded from collective bargaining but nowadays we see more public sector employees involved in collective bargaining. Often public employees are covered by special collective bargaining statutes which put certain restricts on the subject matter of collective bargaining.
As per labour relations legislation, some employees are excluded from collective bargaining. In the past this exclusion has survived Charter scrutiny as it has been held that the freedom of association and freedom of speech do not guarantee a right to collectively bargain. However, newer case law seems to suggest that there is a Charter protected right to collectively bargain. In Health Services, it was held that the Charter includes a procedural right to collectively bargain, but does not guarantee particular objectives. Further, the Charter does not protect all aspects of associational activity, only those which constitute a substantial interference with associational activity. Notably, Bill 5 in SK designates certain employees as “essential services”, and restricts their rights to collectively bargain.
Generally, independent contractors are excluded from collective bargaining. It is believed that they are financially independent enough such that they do not require the protection of collective bargaining. Either of the tests above can be applied to determine if an individual is a contractor or an employee.
Introduction (In a Canadian Context)
Collective bargaining legislation determines who is entitled to bargain collectively and who is excluded. Notably, managers, independent contractors, public workers, privileged employees, confidential employees, and whomever else the statute says so may be excluded. This gives rise to the threshold question of “who is an employee”? The two most commonly cited tests are the Montreal Locomotive Test and the “purposive” aka Hearst test.
The measure of damages for wrongful dismissal is governed by the length of the notice period in the contract of employment, because what makes the dismissal unlawful at common law is the employer’s failure to give due notice or wages in lieu of. Therefore, the employer can recover only for wages and benefits that he or she would have been legally entitled to during the contractual notice period.
If the employer acted in a particularly repulsive way in the manner of dismissal, there is no additional recourse for the employee unless the employee can show that the employer’s conduct constituted an independently actionable tort such as mental distress (Honda v. Keays).
An employer can dismiss an employee if there is a valid cause. The test for valid cause is if the employee dishonestly violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer (McKinley).
Constructive dismissal is a doctrine that states when an employer unilaterally and drastically alters the terms of an employee’s employment, the employee is entitled to quit their job and sue the employer from wrongful dismissal. In other words, an employer is not allowed to unilaterally change an employment contract, unless the employee explicitly accepts. If an employer continues to work even after the drastic change, this does not necessarily constitute acceptance. Bad faith is not a requirement for an employer to commit a repudiatory breach (Farber v. Royal Trust).