Ackman v. Canada ( Adjudicator, Canada Labour Code )
T-1448-97
Campbell J.
20/2/98
14 pp.
Judicial review of Adjudicator's decision dismissal of applicant not unjust-In 1988 applicant hired by CFRY Radio in Portage la Prairie-When hired, told job required residence in Portage la Prairie, where in fact resided until 1994 when moved to Winnipeg, approximately 1 1/2 hours away-Applicant's duties including coverage of bi-monthly City Council meetings-On January 13, 1995 applicant missed City Council meeting when car trouble prevented him from returning to Portage la Prairie from Winnipeg-On afternoon of December 4, 1995 applicant drove to Winnipeg, despite reading many weather reports of severe, impending blizzard-Due to blizzard conditions unable to drive to work next morning-On December 6, warned in writing future absences for reasons relating to commute would result in termination of employment-On March 19, 1996 applicant absent because car would not start-Made no effort to find alternative means of getting to work-On March 20 terminated with two weeks notice-Applicant filing complaint with Human Resources Development Canada (HRDC) of unjust dismissal alleging employment terminated because lived in Winnipeg-CFRY responding to HRDC inquiry stating applicant terminated because inability to report to work due to circumstances unique to commute from Winnipeg not acceptable reason for not reporting-Citing failures to report to work on November 6 and December 5, 1995 and March 19, 1996-Adjudicator appointed, finding dismissal not unjust-Whether (1) jurisdictional error because Adjudicator considering negative allegations of applicant's job performance not mentioned in CFRY's response; (2) adjudicator's decision patently unreasonable because absences from work involving "acts of God" beyond applicant's control-(1) No jurisdictional error-"Doctrine of culminating incident" exception to general rule employer limited at hearing in terms of justification for individual's dismissal, to those matters raised in response to inspector from Labour Canada-Doctrine of culminating incident posits where employee engaging in some final, culminating act of misconduct or course of conduct for which some disciplinary sanction may be imposed, proper for employer to consider a checkered and blameworthy record in determining appropriate sanction-Adjudicator correctly applying this legal principle-Once Adjudicator found grounds for disciplinary action, open to him to inspect whole record of poor job performance to conclude whether action taken by employer unjust-(2) As ample evidence supporting finding dismissal not unjust, Adjudicator's conclusion not patently unreasonable-Canada Labour Code, R.S.C., 1985, c. L-2, ss. 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 241, 242 (as am. idem, s. 16), 243.