Tuesday, September 25, 2012

Federal Unjust Dismissal Complaints

The Supreme Court is about to release its decision on an application for leave to appeal on a somewhat interesting case.  My guess is that leave to appeal will be denied, but it draws attention to something that I don't often deal with in this blog.

Most of my entries deal with dismissals from non-unionized Provincially regulated employers.  Because that's what most wrongful dismissal cases are.  The primary recourse is a wrongful dismissal action before the Courts, though in the right (or wrong) facts one might consider an application to the Human Rights Tribunal, or a complaint to the Ministry of Labour.  A lawyer should be consulted before picking one avenue or another.

However, in the Federal sphere, the decision is different, because of unique provisions of the Canada Labour Code.  (I discussed this difference last October.)  In general, an employer is entitled to dismiss anyone, at any time, for almost any reason, provided that - without just cause - the employee is entitled to "notice".  If I'm an employer, I might wake up one morning, say "I feel like firing somebody", and have my employees draw straws.  Whomever gets the short straw gets fired on contractual notice.  For Federally-regulated employers, however, that may not be the case.  And, where the preconditions for an "unjust dismissal" are satisfied, even reinstatement is on the table.

That isn't generally a major issue.  Most Federally-regulated employers are large companies, with sophisticated HR practices, etc.  Banks.  Telecommunications companies.  Aviation.  There are exceptions, however, including some logistics companies, among others.

In the case in question Gravel v. Telus, Mr. Gravel was dismissed from his position within Telus.  He made two complaints, including unjust dismissal and wage recovery.  The inspector allowed (in part) his wage recovery complaint, but concluded that the unjust dismissal was a "layoff", so the complaint could not be considered.*  However, the adjudication panel reversed the wage recovery order, and upheld the "layoff" decision.  That conclusion was affirmed on judicial review to the Federal Court, and on appeal to the Federal Court of Appeal.

At all stages, Mr. Gravel has been self-represented.  This was remarked upon by the Federal Court of Appeal:  "It can only be deplored that at no time did the appellant have the benefit of representation by attorney, particularly at the crucial stage of the hearing before the adjudicator/referee."**

The observation is important.  At this level, the fight is about "standard of review".  An administrative decision-maker made a decision, and is generally entitled to deference.  The Federal Court saw no reason to interfere with the decision, and the Federal Court of Appeal agreed.  Now, the application for leave to appeal to the SCC essentially has to be based on an allegation that the lower Courts got the standard of review wrong.  Unlikely.

Still, while I haven't been able to read the decision of the inspector or of the panel, Gravel's case seems not to have been baseless, at least at the outset.  There is correspondence from the employer to the inspector stating that the dismissal was for "performance and competency reasons following a corporate restructuring", and other emails referred to an intention to "replace" him.  The interpretation of the former quotation can certainly be argued either way:  If there's a corporate restructuring which eliminates a position, the "unjust dismissal" complaint process isn't available.  So the employer might opt not to go to extra lengths to find a new place for this employee, because of performance and competency concerns.  And that's legitimate.  On the other hand, the fact that they cite performance and competency as part of the justification for the termination suggests, perhaps, a different primacy of motivation.  The emails suggesting that they were looking to 'replace' him necessarily imply that his job functions were still being continued, notwithstanding the corporate restructuring, and that the restructuring may have been a means to an end.

Those were arguments to be made before the panel, however.  It can be very difficult to get a Court to revisit evidentiary points, because hearings are complex matters with significant evidence, and at the end of the day the finder of fact has to fit everything together given the whole context of the matters in question.  It goes with a high degree of deference, and the Courts will not interfere lightly.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.


*The Panel considered in detail the difference in definition between certain words in the CLC: "congédiement", which they translate as "dismissal" and "licenciement" which they translate as "layoff".  The English version of the CLC, however, often uses "termination of employment" (or a similar 'termination' phrase) where the French version uses "licenciement".  I think the semantics are unimportant, though I dislike that particular distinction.  The decision turns on an interpretation of a s.242(3.1)(a), that an adjudicator has no jurisdiction to consider a complaint where "that person has been laid off because of lack of work or because of the discontinuance of a function."  (French:  "le plaignant a été licencié en raison du manque de travail ou de la suppression d’un poste".)  This shouldn't turn on an essentially empty distinction between 'dismissal', 'termination of employment', and 'layoff', but rather on the specific characteristics of the dismissal/termination/layoff being described - namely, the reasons for it.

**The misuse of the term "attorney" is a pet peeve of mine.  In Canada, we don't follow the U.S. convention of calling all lawyers "attorneys".  As it turns out, it is something of a fair translation from the French version of the decision, which used the term "procureur", which does translate to attorney, in the simple sense of being a representative or proxy.  I don't know the conventions in French Canada - whether or not it is common to call lawyers 'procureurs' - but based on the literal translation I would think that the terms 'avocat' or 'plaideur' might have been preferable.

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