Unjust Dismissal Claim Dismissed Due to Collective Agreement Status

Reasons for decision [NAME], complainant, and [COMPANY], respondent . Board File: 037886-C Neutral Citation: 2026 [NAME] 1221 January 9, 2026 The panel of the Canada Industrial Relations Board (the Board) was composed of [NAME], Vice-Chairperson, sitting alone pursuant to section 14(3.1) of the Canada Labour Code (the Code ). Parties’ Representatives of Record Mr. [NAME], on his own behalf; Mr. [NAME], K.C., for the [COMPANY].

I. Nature of the Complaint and Procedural Background [ 1 ] On October 3, 2023, Mr. [NAME] (the complainant) filed an unjust dismissal complaint pursuant to section 240(1) of Part III (Standard Hours, Wages, Vacations and Holidays) of the Code with [NAME] ([NAME]) against his former employer, the [COMPANY] ([NAME] or the employer). [ 2 ] In his complaint, Mr. [NAME] indicated that [NAME] unjustly dismissed him after he was removed from the hiring hall referral system’s “[c]ardboard” list on July 19, 2023, which resulted in him not being dispatched for longshoring work in the [NAME], in Nova Scotia. [ 3 ] The [NAME] referred the complaint to the Board for adjudication on July 23, 2024. The Board acknowledged receipt of the complaint and wrote to the parties to advise them of the time limits for filing a response and a reply. [ 4 ] The employer raised a preliminary objection. It argued that Mr. [NAME] was a member of a group of employees subject to a [NAME] and that he therefore did not meet the threshold requirement under section 240(1)(b) of the Code to make an unjust dismissal complaint. [ 5 ] The Board provided the complainant with opportunities to respond to the preliminary objection. The complainant provided submissions relating to the merits of the complaint but not to the objection raised pursuant to section 240(1)(b) of the Code . [ 6 ] The Board provided the certified bargaining agent, the Council of International Longshoremen’s Association Locals for the [NAME] (ILA Council), with a copy of the complaint and asked if it wished to intervene to provide submissions about whether the complainant was a member of a group of employees subject to its [NAME] with [NAME]. The ILA Council did not provide a response. [ 7 ] This decision deals only with the preliminary issue of whether the complainant was a member of a group of employees subject to a [NAME] and was therefore not eligible to file an unjust dismissal complaint under section 240(1)(b) of the Code . [ 8 ] The Board finds that the complainant was a member of such a group of employees. Consequently, it dismisses the complaint because the complainant has not fulfilled one of the conditions for making an unjust dismissal complaint, as set out in section 240(1)(b) of the Code .

II. Background and Facts [ 9 ] Given the unique nature of employment in the longshoring industry, it is useful to first describe the hiring hall referral system and the process for dispatching labour in the [NAME]. [ 10 ] [NAME] is an organization appointed by the Board under section 34(3) of the Code as the designated employer representative for all employers actively engaged in the longshoring industry in the [NAME]. [ 11 ] [NAME] is responsible for negotiating and administering collective agreements on behalf of its members. There are currently 32 members of [NAME], only four of which are actively engaged in the longshoring industry. [NAME] also oversees the hiring of employees for the longshoring industry. [ 12 ] The ILA Council is certified to represent three bargaining units of workers employed in the longshoring industry in the [NAME]. The Board issued these certifications under sections 32 and 34 of the Code . Section 34 sets out a system of geographic certification of employer and employee bargaining agencies tailored to the specific characteristics of the longshoring industry. There is a unit of longshoremen (Board order no. 8616-U), a unit of checkers (Board order no. 8621-U) and a unit of gear repair and maintenance tradespeople (Board order no. 8622-U). [ 13 ] The bargaining unit description for the longshoremen in Board order no. 8616-U is as follows: all employees including casual employees employed as longshoremen, foremen and walking bosses in the longshoring industry at the [NAME], including those who perform tailgating, to the extent that this does not infringe on the jurisdiction of another union. [ 14 ] The [NAME] are parties to a [NAME] that sets out the terms and conditions of employment for all three longshoring bargaining units and that is in force from January 1, 2022, to December 31, 2025. The [NAME] stipulates that [NAME] and [NAME], respectively, represent the members in each of the three bargaining units listed above. [ 15 ] The [NAME] establishes a hiring hall referral system and rules for the dispatch of longshoring labour at the [NAME]. [NAME] is responsible for dispatching longshoremen to fill orders made by employers for the various daily shifts. [ 16 ] There are four groups or levels of workers on the dispatch list that may be dispatched by [NAME]: 1) union member; 2) [NAME]; 3) trainee on the dispatch list; and 4) casual labourer. [ 17 ] Union members have first priority for available shifts and are entitled to full benefits under the [NAME]. They have successfully met all the hiring and eligibility requirements of [NAME] and have been accepted as members of [NAME]. [ 18 ] Individuals who seek employment and union member status must make an application to [NAME]. To become a union member, the individual must have worked their way up the dispatch list, having first acquired trainee status and then [NAME] status. [ 19 ] To become a trainee on the dispatch list, an individual must complete [NAME]’s hiring process and [NAME]’s hiring process. Trainees on the dispatch list are dispatched for work in priority order, after union members and [NAME]. [ 20 ] [NAME] have second priority after union members to be dispatched for work. To advance to [NAME] status, trainees on the dispatch list must perform satisfactorily when dispatched, meet the attendance requirements and pass certain training courses. [NAME] also constitute the “holding” group for potential [NAME]. When [NAME] decides to accept new members, it must choose individuals with [NAME] status. [ 21 ] Casual labourers are individuals who voluntarily attend the hiring hall on a given day should additional work be available after all workers in the higher priority groups on the dispatch list have been dispatched. Any member of the public can show up on a given day looking for work (with certain exceptions, such as individuals who have previously been banned). [ 22 ] Union members, [NAME] and trainees on the dispatch list are subject to minimum attendance requirements. The complainant was a [NAME] when his employment was terminated. At that time, [NAME] were subject to a minimum attendance requirement of 75 percent of the average hours worked by members on the [NAME] list. [ 23 ] By a letter dated July 19, 2023, [NAME] advised the complainant that he was being removed from the [NAME] list, effective immediately. [NAME] stated that a review of the complainant’s hours for the second quarter of 2023 indicated that he had worked less than 75 percent of the average hours worked by those on the [NAME] list. [NAME] further stated that the complainant’s removal from the list was in accordance with [NAME] and the [NAME].

III. Positions of the Parties A. The Complainant [ 24 ] The complainant submits that he was not a union member but that, when he was removed from the [NAME] list, he was next in line on the list to become a member of [NAME]. He acknowledges that there were rules for maintaining average hours of work but asserts that the rules were confusing and changed frequently. [ 25 ] The complainant alleges that he was unfairly removed from the [NAME] list without warning and was denied accommodation for an eye condition. B. The Employer [ 26 ] [NAME] submits that the Board cannot consider the complaint because the complainant was a [NAME] and subject to the [NAME]. [NAME] submits that [NAME] are subject to the [NAME] even though they are not union members. [ 27 ] [NAME] asserts that [NAME] are employees employed as longshorepersons in the longshoring industry in the [NAME]. Therefore, they are included in the bargaining unit description contained in Board order no. 8616-U and in the [NAME]. [ 28 ] [NAME] further asserts that [NAME] are explicitly covered by the [NAME]. In particular, section 17A.01a) of the [NAME] states: “The parties recognize the employees who make up the [NAME].” [ 29 ] Further, section 8 of [NAME] states that [NAME] must comply with and be bound by all provisions of the [NAME] applicable to [NAME], failing which they may be eliminated from the hiring process. [NAME] submits that [NAME] are dispatched through the hiring hall and are bound by the attendance requirements of the union and [NAME].

IV. Analysis and Decision [ 30 ] Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this complaint without an oral hearing. [ 31 ] Section 240(1) of the Code sets out three conditions that must be met to file an unjust dismissal complaint: 240 (1) Subject to subsections (2) and 242(3.1), a person who has been dismissed and considers the dismissal to be unjust may make a complaint in writing to the Head if the employee (a) has completed 12 consecutive months of continuous employment by an employer; and (b) is not a member of a group of employees subject to a [NAME]. [ 32 ] First, the complainant must have completed 12 consecutive months of continuous employment with an employer. Second, the complainant must not be a member of a group of employees subject to a [NAME]. Third, the complainant must have been dismissed. The Board has jurisdiction to consider the merits of the complaint only if all three conditions have been met. [ 33 ] Section 240(1)(b) of the Code states that an employee who is a member of a group of employees subject to a [NAME] may not make an unjust dismissal complaint under the Code . In the present case, [NAME] argues that the complainant was such an employee, even though he was not a member of [NAME]. [ 34 ] Section 166 of the Code contains a definition of “[NAME].” This definition includes an agreement between a trade union and an employers’ organization, such as [NAME]. [ 35 ] The Board has only issued one decision in which it applied section 240(1)(b) of the Code (see [NAME] , 2022 [NAME] LD 4713). In that decision, the Board found that it did not have jurisdiction to consider the complaint because the complainant was a member of a group of employees subject to a [NAME] at the time of his dismissal. [ 36 ] There are also decisions under this section by ad hoc adjudicators who were responsible for adjudicating unjust dismissal complaints prior to July 29, 2019. On July 29, 2019, Bill C-44 (see Budget Implementation Act , 2017, No. 1 ) came into force and amended the Code provisions relating to unjust dismissals. One of these amendments transferred the responsibility for the adjudication of unjust dismissal complaints from ad hoc adjudicators to the Board. [ 37 ] In these decisions, adjudicators interpreted section 240(1)(b) of the Code according to its plain meaning, finding that an employee is precluded from making an unjust dismissal complaint if they are subject to a [NAME] (see Schwab v. Davey Cartage Co. (1973) Ltd. , [2008] C.L.A.D. No. 373 (QL); and Colbert v. Consolidated Fastfrate Inc. , [1999] C.L.A.D. No. 614 (QL)). The section applies even if the employee is not a union member or is unable to avail themselves of the grievance procedure set out in the [NAME]. [ 38 ] For example, in [NAME]. , [1997] C.L.A.D. No. 454 (QL), the adjudicator determined that a casual employee who was not a union member was nevertheless a member of a group of employees subject to a [NAME]: 24 The first observation that I would make is that it does not appear to matter whether or not the complainant ever actually joined the union. The wording of the legislation does not refer to union membership, but rather whether or not one is a member of a group of employees subject to a [NAME]. That distinction is significant, because many examples exist of collective agreements which simply apply on their face to various employees who not only have not joined the union but who may actively wish to dissociate themselves from the union and/or the entire union movement. Like it or not, as a casual employee of [NAME] from at least 1990 onward, the complainant was a member of a group, casual employees, who had some status under the terms of the [NAME] and were therefore subject to it. There is no doubt that in the collective agreements that have existed between 1990 and the present, casual employees have been something in the nature of second class citizens. However, it is not up to me as a statutory adjudicator to attempt to give such employees side remedies that the [NAME] does not contemplate. As the Heywood and Tobin cases point out, there was nothing much in the collective agreements to benefit those grievors, and their rights under the [NAME] may have been more illusory than real. However, that did not alter the fact that it was within the [NAME] that their rights - such as they were - were to be found. [ 39 ] Similarly, in Fauteux v. Canada Post Corp. , [2000] C.L.A.D. No. 575 (QL), the adjudicator considered whether section 240(1)(b) of the Code applied to a complainant who only had temporary employee status with limited rights under the [NAME]. In particular, the [NAME] restricted grievances relating to the dismissal of temporary employees to circumstances where the dismissal was related to discrimination on a number of enumerated grounds. As the complainant’s dismissal was not related to discrimination, there was no provision in the [NAME] for him to challenge it. [ 40 ] In that case, the complainant argued before the adjudicator that his limited ability to challenge his dismissal under the [NAME] should bar the application of section 240(1)(b) of the Code . The adjudicator rejected this argument, finding that the express words of section 240(1)(b) “preclude any jurisdiction on the part of an adjudicator under section 240 as long as the complainant is subject to a [NAME], whether or not its terms give the complainant an alternative forum for challenging dismissal.” [ 41 ] The Board finds that the adjudicators’ analysis in the jurisprudence discussed above continues to apply to the interpretation and application of section 240(1)(b) of the Code . Bill C-44 made certain amendments to the Code ’s unjust dismissal provisions but did not change the wording of section 240(1)(b). With the reorganization of section 240 that occurred in 2021, section 240(1)(b) was changed slightly to remove a “who,” but this change did not affect the meaning of this section. [ 42 ] Pursuant to section 240(1)(b) of the Code , an employee may make an unjust dismissal complaint if they are “not a member of a group of employees subject to a [NAME].” The Board agrees that a plain reading of this section indicates that it applies in cases where the individual’s employment is subject to a [NAME]. There is no requirement that the individual be a union member. [ 43 ] In the present case, the complainant was a [NAME] and therefore not a member of [NAME]. However, the evidence demonstrates that the [NAME] in force at the time of his dismissal expressly applied to [NAME]. Article 17A of the [NAME], titled “Employment of New Employees \ - [NAME],” states in part the following: 17A.01 a) The parties recognize the employees who make up the [NAME]. b) [NAME] shall be selected by the Union from the [NAME]. [ 44 ] Rule 8 of [NAME] states that members of the [NAME] are: 8. … … required to comply with and be bound by all provisions of the [NAME] between [NAME] and [NAME], all [NAME] policies and procedures as well as all relevant statutory obligations, e.g., Canada Labour Code , Canadian Human Rights Act , etc. [ 45 ] Further, the [NAME] contains provisions concerning training (article 18A.07) and personal protective equipment and clothing (article 14A.23) that apply specifically to [NAME]. [ 46 ] The evidence outlined above indicates that the [NAME] between [NAME] and the ILA Council applied to the complainant’s employment as a [NAME]. [ 47 ] The relevant time for assessing whether a complainant was a member of a group of employees subject to a [NAME] is the date of the complainant’s dismissal (see Canada Post Corp. v. Pollard (C.A.), [1993] F.C.J. No. 1038 (QL)). In the present matter, the [NAME] was in force on July 19, 2023, the date of the complainant’s dismissal. [ 48 ] Consequently, the Board finds that the complainant was a member of a group of employees subject to a [NAME] at the time of his dismissal. As such, he has not fulfilled one of the conditions that must be met to make an unjust dismissal complaint, as set out in section 240(1)(b) of the Code . The Board therefore dismisses the complaint. [ 49 ] The Board notes that section 242(3.1)(b) of the Code may also deprive it of jurisdiction to consider this complaint because the complaint raised an allegation of failure to accommodate based on an eye condition. Section 242(3.1)(b) states that the Board may not consider an unjust dismissal complaint where a procedure for redress has been provided under Part I (Industrial Relations) or Part II (Occupational Health and Safety) of the Code or under any other Act of Parliament. [ 50 ] A complaint to the Canadian Human Rights Commission (CHRC) has been found to be another procedure for redress within the meaning of section 242(3.1)(b) of the Code (see [NAME] , 2020 [NAME] 948). Section 242(3.1)(b) does not require a complainant to have actually availed themselves of the other procedure and to have filed a CHRC complaint. The Board may not have jurisdiction if the issues presented in the unjust dismissal complaint could reasonably constitute the basis for a substantially similar complaint to the CHRC (see [NAME] , 2021 [NAME] 961). [ 51 ] In the present matter, the Board asked the complainant to confirm whether he had filed a complaint with the CHRC but did not receive a response. There was no evidence or argument concerning this issue on the record. The record does not disclose if a complaint to the CHRC was filed or the status of that complaint, if one was indeed filed. In these circumstances and given that the Board’s findings regarding section 240(1)(b) of the Code are dispositive of the complaint, the Board will not deal with this issue.

V. Conclusion [ 52 ] For the above-noted reasons, the Board finds that it does not have jurisdiction to determine the unjust dismissal complaint.

Accordingly, it dismisses the complaint. ____________________ [NAME]-Chairperson