LABOUR RELATIONS
Judicial review of decision by adjudicator allowing unjust dismissal complaint filed by respondent, ordering reinstate-ment and payment of half respondent’s legal fees—Applicant, agent of Her Majesty, governed by Financial Administration Act and under authority of Minister of Supply and Services —In April 2003, respondent demoted from manager to contract coordinator owing to difficulties experienced with responsibilities as manager and administrator, and dismissed in May 2003—As explanation, told Company exercising right to terminate employment without cause as result of tense relations with co-workers and client, Department of National Defence—Later, during investigation, applicant justified dismissal by stating respondent’s performance unsatisfactory in number of areas: poor relations with clients, inability to properly manage staff, poor relations with colleagues and superiors, poor work product, unexplained absences from work —Adjudicator first deciding, based on Jennings v. Shaw Cablesystems Ltd., 2003 FC 1206, could, even ought, to accept grounds added to grounds cited at time of dismissal—Then finding evidence did not support employer’s contentions; holding dismissal inappropriate in circumstances, instead ordering long-term suspension—Relying on Atomic Energy of Canada Ltd. v. Sheikholeslami, [1998] 3 F.C. 349 (C.A.) and Chalifoux v. Driftpile First Nation, 2002 FCA 521, adjudicator positing as premise must order respondent’s reinstatement unless of opinion not possible to restore relationship of trust and, considering circumstances, ordering reinstatement— Finally, refusing to award damages—Issues: standard of review applicable to adjudicator’s decision; assessment of evidence by adjudicator; employer’s time to disclose grounds for dismissal to employee; and whether, where dismissal unjust, reinstatement presumed—Application allowed— Canada Labour Code, s. 240 giving non-unionized employees protection against unjust dismissal analogous to protection normally reserved for unionized employees in collective agreement; precluding arbitrary action by employer and ensuring continuity of employment—With respect to adjudicator’s assessment of facts, as well as choice of appropriate remedy, appropriate standard of review patent unreasonableness—However, whether adjudicator misinter-preted law in stating bound to reinstate respondent unless employer demonstrated relationship of trust breached, as well as whether employer can add to reasons for dismissal initially disclosed to employee until complaint heard by adjudicator, subject to standard of correctness—Adjudicator did not err unreasonably in assessing reasons for dismissal, specifically in deciding respondent’s repeated absences not valid cause for dismissal, although constituting serious misconduct—Howard v. Maritime Telephone and Telegraph Co., [2000] F.C.J. No. 1758 (T.D.) (QL) and Jennings v. Shaw Cablesystems Ltd. indicating employer must disclose grounds alleged within 15 days of request by dismissed employee or inspector; inspector should be able to learn true reasons for dismissal if attempts at conciliation capable of producing results; all formalism must be avoided, adjudicator master of procedure—It must therefore be accepted in some circumstances employer allowed to provide new explanations after prescribed time limits— However, more remote subsequent reasons from original explanation, more employer’s credibility subject to caution— Also, employee must always have opportunity to defend self, to answer employer’s allegations—Adjudicator should have demonstrated greater circumspection, required better explanations from employer before considering all reasons— But since all reasons rejected (apart from absences) at conclusion of rigorous analysis of evidence, error proved inconsequential, not by itself warranting setting aside decision —With regard to reinstatement, Court not persuaded adjudicator not unduly influenced in decision by initial premise must order reinstatement if relationship of trust not irreparably broken—In doing so, clearly error in law with potential impact on final outcome of case—Matter returned to adjudicator to assess appropriate relief without applying wrong presumption, but by taking into account only factors generally considered (see England et al., Employment Law in Canada, 4th ed., vol. 2, LexisNexis Canada, looseleaf ed., par. 17.153) —No reason to intervene in respect of adjudicator’s decision ordering applicant to reimburse half of legal costs incurred by respondent in context of adjudication proceeding—Financial Administration Act, R.S.C., 1985, c. F-11—Canada Labour Code, R.S.C., 1985, c. L-2 , s. 240 (am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15).
Defence Construction Canada Ltd. v. Girard (T‑1298-04, 2005 FC 1177, de Montigny J., order dated 29/8/05, 33 pp.)