PART III — Standard Hours, Wages, Vacations and Holidays

DIVISION XIV.1 — Complaints Relating to Reprisals

246.1Complaint to Board history

(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)

the employer has taken action against the employee in contravention of paragraph 210.5(a) or (b);

(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).

For greater certainty

(1.1)

For greater certainty, the fact that an employer complies with Divisions X and XI does not

(a)

affect the employee’s rights under this Division; or

(b)

prevent the Board from deciding under section 246.4 that the employer has taken a reprisal against them or from making any order under that section, including a reinstatement order.

Limitation

(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.

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.

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.

2017, c. 20, s. 356; 2017, c. 33, s. 215; 2018, c. 27, s. 506; 2018, c. 27, s. 516; 2018, c. 27, s. 582; 2020, c. 5, s. 43; 2020, c. 12, s. 4.6; 2021, c. 26, s. 25; 2024, c. 15, s. 203; 2024, c. 17, s. 253

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246.2Suspension of complaint history

(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.

Notice

(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.

End of suspension

(3)

The suspension ends when, in the Board’s opinion, the measures specified in the notice have been taken.

2017, c. 20, s. 356; 2018, c. 27, s. 506

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246.3Rejection of complaint history

(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.

Notice of rejection of complaint

(2)

If the Board rejects a complaint, it shall notify the employee in writing, with reasons.

2017, c. 20, s. 356; 2018, c. 27, s. 506

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246.4Board orders history

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.

2017, c. 20, s. 356

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246.5Decisions final history

(1)

Every decision of the Board made under this Division is final and shall not be questioned or reviewed in any court.

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.

2017, c. 20, s. 356

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246.6Enforcement of orders history

(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.

Registration

(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.

2017, c. 20, s. 356; 2018, c. 27, s. 583

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246.7 history

[Repealed, 2017, c. 20, s. 356]

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