Canada Labour Code

Marginal note:Complaint

• 247.99 (1) An employee who alleges that an employer has taken action against the employee in contravention of subsection 247.98(4) may make a complaint in writing to the Head.

• Marginal note: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 paragraph (7)(a) that the employer has taken action against the employee in contravention of subsection 247.98(4) or from making any order under subsection (8), including a reinstatement order.

• Marginal note:Time for making complaint

  (2) Subject to subsection (3), the complaint shall be made to the Head not later than 90 days after the day on which the complainant knew, or in the Head’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Extension of time

  (3) The Head may extend the period of time referred to in subsection (2)

  • (a) if the Head is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the employee making the complaint believed the official had that authority; or

  • (b) in any other circumstance that is prescribed by regulation.

• Marginal note:Head to assist parties

  (4) On receipt of a complaint made under subsection (1), the Head shall endeavour to assist the parties to the complaint to settle the complaint.

• Marginal note:Complaint not settled within reasonable time

  (5) If a complaint is not settled under subsection (4) within the period that the Head considers to be reasonable in the circumstances, the Head must, on the written request of the employee who made the complaint that the complaint be referred to the Board, deliver to the Board the complaint made under subsection (1) and any other statements or documents that the Head has that relate to the complaint.

• Marginal note:Notice

  (6) If the employee who made the complaint does not reply to a written communication from the Head within a period that the Head considers to be reasonable in the circumstances and a period of at least 30 days, or any longer period that may be prescribed by regulation, have elapsed from the day on which the complaint was made, the Head may give written notice to the employee that they have the period of 30 days, or any longer period that may be prescribed by regulation, set out in the notice to make a written request that the complaint be referred to the Board.

• Marginal note:Time limit

  (6.1) Subject to the regulations, if the employee to whom notice is given under subsection (6) does not, within the period set out in the notice, make a written request that the complaint be referred to the Board, the Head may deem the complaint to be withdrawn.

• Marginal note:Suspension of complaint

  (6.2) If the Board is satisfied that the complainant must take measures before the Board may continue to deal with the complaint referred to it under subsection (5), it may, at any time, suspend consideration of the complaint, in whole or in part.

• Marginal note:Notice

  (6.3) If the Board suspends consideration of a complaint, the Board shall notify the complainant in writing and specify in the notice

  • (a) the measures that complainant must take; and

  • (b) the period within which they must take those measures.

• Marginal note:End of suspension

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

• Marginal note:Rejection of complaint

  (6.5) The Board may reject a complaint referred to it under subsection (5), 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 (6.2) and if, in the Board’s opinion, the measures specified in the notice under subsection (6.3) were not taken within the specified period.

• Marginal note:Notice of rejection of complaint

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

• Marginal note:Decision of Board

  (7) The Board, after a complaint has been referred to it, shall

  • (a) consider whether the employer has contravened subsection 247.98(4) and render a decision on it; and

  • (b) send a copy of the decision with the reasons for the decision to each party to the complaint and to the Head.

• Marginal note:Orders

  (8) If the Board decides under subsection (7) that an employer has contravened subsection 247.98(4), the Board may, by order, require the employer to cease contravening that subsection and may, if applicable, by order, require the employer to

  • (a) permit the employee to return to the duties of their employment;

  • (b) reinstate the former employee;

  • (c) pay to the employee or former employee compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee;

  • (d) rescind any disciplinary action taken in respect of the contravention and pay compensation to the employee, 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 like thing that it is equitable to require the employer to do in order to remedy or counteract any consequences of the contravention.

• (9) [Repealed, 2018, c. 27, s. 496]