Murphy v. Canada ( Adjudicator, Canada Labour Code )
T-609-92
Walsh D.J.
21/12/92
19 pp.
Application for declaration Adjudicator's decision imposing conditions invalid; setting aside portion of decision relating to compensation; referring compensation portion of decision back to Adjudicator for determination of compensation owed -- Employer terminating applicant's employment based on indication from Worker's Compensation Board as to inability to work -- Adjudicator finding unjust dismissal and reinstating applicant provided reasonable attendance maintained, would submit to medical examination by employer's doctor if absent for more than three days, Adjudicator to remain seized should any problems with conditions arise -- Not awarding compensation -- Applicant arguing Adjudicator exceeded jurisdiction in imposing conditions, in not ordering payment of compensation after finding unjust dismissal, in considering lack of fault on part of employer and potential problems for employer with Worker's Compensation Board as result of order, in considering requirements of respondent fair -- Canada Labour Code, s. 242(4) providing where adjudicator finding unjust dismissal may require employer to pay compensation, reinstate employee and any other like thing equitable to require employer to do to remedy consequence of dismissal -- S. 243 providing orders of adjudicator appointed under s. 242(1) final and shall not be questioned or reviewed in any court -- Nothing in part of decision as to ability to perform work patently unreasonable so as to justify judicial interference -- Doubtful applicant could on regular basis continue to carry out duties for respondent involving frequent lifting of 70 pounds without further injury to his back resulting in involuntary absenteeism -- Reference to Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382 for circumstances taking exercise of tribunal's discretion outside protection of privative clause -- Significant s. 242(4) providing when unjust dismissal found, employer may be required to do certain things, but nothing as to what employee may be required to do as condition of reinstatement -- Cases dealing with arbitration under collective agreements or application of differently worded provincial legislation distinguished -- Decision to reinstate inconsistent with holding employer's decision, in light of medical evidence, fully justified -- Cases establishing Adjudicator acting under s. 242(4) may order reinstatement without compensation for lost earnings in interval between dismissal and reinstatement -- Adjudicator's decision as to compensation should not be interfered with -- As s. 242(4)(c) referring only to what "employer" may be required to do and Adjudicator "functus" after deciding issues of reinstatement and compensation, imposition of conditions for three years and retention of jurisdiction outside Adjudicator's jurisdiction -- Comments about absence of employer's fault, speculation about putting employer at risk with Worker's Compensation Board gratuitous -- Portion of decision imposing conditions struck -- Canada Labour Code, R.S.C., 1985, c. L-2, s. 242 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16), 243 -- Federal Court Act, R.S.C., 1984, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5) -- Federal Court Rules, C.R.C., c. 663, RR. 344 (as am. by SOR/87-221, s. 2), 1602 (as enacted by SOR/92-43, s. 19).