Ackman v. Canada (Ministry of Labour), docket T-1448-97

Date: 19980220

Docket: T-1448-97

     RE IN THE MATTER OF AN ADJUDICATION

     UNDER PART III,

     DIVISION XIV OF THE CANADA LABOUR CODE, R.S., C. L-1

     - and -

     A COMPLAINT OF UNJUST DISMISSAL PURSUANT TO SECTION 242 OF THE

     CANADA LABOUR CODE

BETWEEN:

     NOLAN ACKMAN,

     Applicant,

     - and -

     ADJUDICATOR, ALLEN W. YOST

     (being an Adjudicator appointed pursuant to Section 242 of The Canada Labour Code)

     and THE MINISTER OF LABOUR,

     and Portage-Delta Broadcasting Co. Ltd.,

     Respondents.

     REASONS FOR ORDER

CAMPBELL J.

[1]      This is an application for judicial review of a decision dated May 30, 1997 of Allen W. Yost, an Adjudicator appointed pursuant to s.242 of the Canada Labour Code (the

"Adjudicator"), wherein it was determined that the dismissal of Nolan Ackman (the "Applicant") from CFRY Radio, Portage-Delta Broadcasting Co. Ltd. ("CFRY") was not unjust.

[2]      The Applicant brought this application for judicial review on 12 grounds which essentially allege that the Adjudicator acted without jurisdiction or exceeded his jurisdiction or erred in law in failing to exercise his jurisdiction in coming to the conclusion that the Applicant's dismissal was not unjust. As a consequence, the Applicant asks that the order be quashed or set aside, and the matter be referred to another adjudicator for re-hearing.

A. Facts upon which the Adjudicator"s decision was made

[3]      The facts are summarized from the Affidavit of the Applicant, the Decision of the Adjudicator and the exhibits filed at the hearing.

[4]      The Applicant was hired as an on-air News and Sports Director by CFRY in September 1988. At that time, the Applicant had seven years previous experience as a News and Sports Director. The CFRY radio station is located in Portage la Prairie and the Applicant resided there. At the time he was hired, he was told that the job required that he reside in Portage la Prairie. The Applicant's duties were to ensure that local news, sports, City Council and any newsworthy events occurring during the day were reported. He supervised two other persons in the news department, assigned stories and reviewed their performance. His starting salary was $1,875 per month.

[5]      At the time he was hired, Bob Turner ("Turner") was his Program Manager and supervisor. On May 11, 1989, the Applicant received a memo from Turner which was critical of his performance on-air and requested that he observe certain rules with respect to his on-air delivery of the news.

[6]      In May, 1989, the Applicant's salary was increased to $1,975 per month.

[7]      In 1990, Ms. Edmondson ("Edmondson") replaced Turner as the Program Manager. There was evidence that the Applicant and Edmondson developed a personality conflict.

[8]      In February, 1991 the Applicant's salary was increased to $2,075 per month. The Applicant assumed that the salary increases were indicative of good job performance.

[9]      On February 15, 1994, Edmondson and Mr Hughes, the Manager at CFRY ("Hughes"), gave the Applicant a memorandum outlining their concerns with his job performance and met with him to discuss it. He was advised that his performance would be closely monitored for the following ten weeks and that he would be suspended for one week if their concerns were not addressed. The Applicant received memorandums on March 8 and March 23, 1994 outlining further concerns with his job performance. On March 28, 1994, the Applicant failed to attend and report effectively on a local event to which he was assigned.

[10]      At the end of April 1994, Edmondson and Hughes felt that the Applicant's performance had not shown satisfactory improvement. He was reminded that his on-air delivery needed improvement and he was demoted to a morning News Reader with a salary reduction to $1,900 per month. The previous morning News Reader, Mr. Gordon ("Gordon") was promoted to the position of News and Sports Director. The Applicant's hours were from 5:30 a.m. to 12:30 p.m. and his duties included broadcasting the morning news and coverage of the bi-monthly City Council meetings which commenced at 5:00 pm.

[11]      The Applicant objected to covering the City Council meetings because it required him to wait around until 5:00 p.m. to cover the meeting. The previous morning News Reader was not required to cover City Council meetings but when the meetings were changed from 8:00 p.m. to 5:00 p.m., Edmondson did not feel that it was unreasonable for the Applicant to cover the meetings. The Applicant was encouraged to record all hours of over-time worked and he would be compensated accordingly.

[12]      Gordon was required to do an on-air check of the Applicant's performance. Gordon sent the Applicant various memorandums dated May 25, May 26, September 23 and October 4, 1994 which outlined necessary improvements to his poor on-air performance. On October 12, 1994, Edmondson met with the Applicant and gave him a memorandum outlining her displeasure with his attitude and the quality and quantity of his work.

[13]      Gordon got married and wanted to move to Winnipeg. Portage la Prairie is approximately 1 & 1/2 hours away from Winnipeg. In October 1994 it was decided by Hughes and Edmondson that his move would interfere with his position as News and Sports Director and he resigned. He was replaced by Mr. Henley ("Henley").

[14]      In June 1994, the Applicant moved to Winnipeg with his new wife.

[15]      In January, 1995, CFRY decided to increase the scope of the coverage of the City Council meetings. Now the Applicant would be required to attend the meetings which took place one week prior to the Council meetings proper. The Applicant made his displeasure with having to cover both sets of meetings known to Edmondson and Henley.

[16]      On January 3, 1995, the Applicant missed a City Council meeting due to car trouble and was unable to get back to Portage la Prairie from Winnipeg. On January 31, 1995, Hughes gave the Applicant a memorandum reminding him that coverage of the City Council meetings was a condition of his employment.

[17]      On March 21, 1995, Hughes and Edmondson again met with the Applicant to discuss various concerns including his on-air performance and that he would be suspended if his performance did not improve.

[18]      The Applicant failed to attend another City Council meeting on November 6, 1995. The Applicant lied and said that he had attended, but it was later discovered that he had not attended but rather had telephoned the Mayor for an account of the meeting stating that he had a dental appointment and was unable to attend. He reported the story over the telephone. Hughes suspended the Applicant for one week. The Applicant later slipped a note under Hughes' door wherein he apologized for lying and stated that on November 6 he had to accompany his pregnant wife to the doctor. He stated that he did not want to ask for the time off as he had been refused requests in the past.

[19]      Despite reading many weather reports of a severe, impending blizzard, the Applicant drove to Winnipeg on the afternoon of December 4, 1995. Due to the blizzard conditions he was unable to drive into work the next morning. On December 6, 1995, Hughes gave the Applicant a memorandum (Exhibit 10) which reads as follows:

This is to review our discussion of this date: It is noted and recorded that due to a highway closure you were unable to report for your morning news shift on Tuesday December 5th. A major blizzard in Saskatchewan was very much in the news all day Monday and it was forecasted to reach Manitoba by Monday evening. You apparently chose to ignore the forecast and warnings and return to Winnipeg.

Nolan, the public relies on radio heavily when there is a storm. They want to know about school closures, road conditions and other weather related matters.

Bottom line....the radio station is in Portage la Prairie and this is where the job is. You are expected to be here. If at any time in the future you miss work again for a reason(s) related to your commuting from residency outside the municipality of Portage la Prairie your employment will be terminated.

If you have any questions please ask.

[20]      On March 18, 1996 the Applicant attended the City Council meeting but drove home to Winnipeg without filing his news report at the station. The next morning, his car would not start and he called Edmondson to say that he would not be in. He made no effort to find an alternative route into work. When asked why he did not file a report about the City Council meeting, he stated that there was nothing worth reporting despite the fact that other news sources had reported stories about the meeting.

[21]      On March 20, 1996, the Applicant was terminated with two weeks notice.

[22]      On April 3, 1996, the Applicant filed a complaint at Human Resources Development Canada of unjust dismissal from his employment with CFRY Radio alleging that his employment was terminated because he lived in Winnipeg.

[23]      On April 10, 1996, a Labour Affairs Officer with Human Resources Development Canada sent a letter to CFRY requesting the reasons for the Applicant's dismissal.

[24]      On April 23, 1996, CFRY's response denied that the Applicant was terminated because he resided in Winnipeg but rather, he was terminated because his inability to report to work due to circumstances unique to his commute from Winnipeg was not an acceptable reason for not reporting and that he failed to report to work on November 6 and December 5, 1995 and March 19, 1996.

[25]      After being advised of CFRY's response to his complaint, the Applicant requested that an adjudicator be appointed to deal with the case on August 1, 1996.     

B. Review process of the Applicant"s dismissal

[26]      Under s.240 of the Canada Labour Code, a person who considers that he or she has been unjustly dismissed may make a complaint to an inspector under the Code.

[27]      Pursuant to s.241(2), the inspector is to endeavour to assist the employee and employer to settle the complaint. Section 241(3) provides that if the compliant cannot be settled and the employee so requests, the inspector shall report to the Minister that the complaint could not be settled and deliver to the Minister all documents in the possession of the inspector that relate to the complaint.

[28]      Under s.242(1) the Minister may then appoint an adjudicator to hear and adjudicate the complaint. Under s.242(3) the adjudicator is authorized to consider whether the dismissal was unjust and render a decision thereon. Under s.242(4) the adjudicator may issue an order requiring an employer to pay compensation to the employee, reinstate the employee, or take other action to counter the consequences of the dismissal.

[29]      Section 243(1) and (2) of the Canada Labour Code provide a privative clause as follows:

243.[61.5(10), (11)] (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242. 1997-78, c. 27, s. 21.

[30]      With respect to the privative clause, in Air Canada v. Norman J. Davis¹, Muldoon, J. discussed the standard of review applicable to judicial review of the decision of an adjudicator appointed pursuant to the Canada Labour Code. He concluded that the standard of review with respect to errors within jurisdiction is that of patent unreasonableness whereas with respect to the question of jurisdiction, the standard is one of correctness.

[31]      A decision is patently unreasonable if it is clearly irrational and is not in accordance with reason².

C. The Adjudicator"s decision

[32]      The decision reads as follows:

I cannot agree that Mr. Ackman was dismissed because he lived in Winnipeg, as he alleged in his complaint. I take it that it had at first been a condition of his employment that he reside in Portage la Prairie, but that either that had changed by June, 1994 or the Employer acquiesced to his moving to Winnipeg then. On the other hand, in its letter of December 6, 1995 the Employer specified that it expected Mr. Ackman to be at work and considered him to have assumed the responsibility for any increased probability that he would be unable to attend work as a result of his having chosen to live outside Portage la Prairie. The letter went further and specifically warned him that the consequence of his missing work for that reason would be dismissal.

Despite the Employer's warning, there is no evidence that on March 19, 1996 Mr. Ackman had any contingency plan in place or made any effort to get to work beyond having attempted to start his car. I accept that he had good reason to be confident that his recently repaired vehicle would perform properly. However, in the circumstances I believe it is more than hindsight to maintain that he should nevertheless have had alternate transportation plans. Without diminishing the generality of the foregoing, those plans might have included taking a taxi to work in the absence of any relatives or friends from whom he could borrow a car or who could drive him to work. I do not find that he gave the Employer a justifiable explanation for his absence. I therefore find that the Employer was within its rights to have imposed disciplinary action for the absence from work.

That being the case, nothing turns on a determination as to whether Mr. Ackman's assertion that there were no newsworthy stories to report which had not already been reported is an adequate response to the Employer's concern that he failed to file a story on the previous day's committee meeting. I note that Ms. Hickman's letter of May 6, 1996 did not include that assertion in Mr. Ackman's response to Mr. Hughes' reasons for termination. In any event, it would have been appropriate for Mr. Ackman to have informed the Employer that in his view there were no newsworthy stories to report which had not already been reported.

Examination of the Employer's handling of the incidents which preceded the November, 1995 suspension leads me to conclude that there is no support for the suggestion that there was a campaign to terminate Mr. Ackman's employment. I did not have the benefit of testimony from Ms. Edmondson as to the specific incident involving Mr. Ackman's giving out a cassette, but overall it appears that she and Mr. Hughes were acting in good faith in attempting to address problems they perceived with Mr. Ackman's performance. Although the assignment of responsibility for coverage of City Council and committee meetings resulted in Mr. Ackman's having a split shift, the Employer repeatedly made it clear that it did not intend that he work more than 40 hours per week on average and wanted to know if that were exceeded.

In having decided upon dismissal the Employer took into account the absenteeism incidents of November 6 and December 5, 1995. In terms of corrective measures it had gone as far as imposing a suspension in dealing with the absence in November. Mr. Ackman did not take issue with the fairness of the suspension in his note of November 29, 1995.

Following the December absence the Employer had chosen not to impose a further suspension or to move on to dismissal, but had in its memorandum of December 6, 1995 made its position clear in no uncertain terms. It gave Mr. Ackman a clear and unequivocal final warning.

I find that in these circumstances it was reasonable for the Employer to conclude that any action other than dismissal would not resolve the problem and that the employment relationship was no longer viable. Accordingly, I find that the Employer's dismissal of Mr. Ackman was not unjust.

D. Arguments

[33]      In the hearing, the Applicant"s argument appropriately focussed on two points, the first being that the Adjudicator made an error going to jurisdiction because he took into consideration negative allegations of the Applicant's job performance not mentioned in the CFRY's response letter to the filed complaint, contrary to s.241(1) of the Canada Labour Code which reads as follows:

241. Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.

[34]      The second argument is that, in recognition of the limiting effect of the privative clause, the adjudicator"s decision was patently unreasonable, in view of the circumstances surrounding the Applicant's absences from work on December 5, 1995 and March 19, 1995 involving "acts of God" beyond the Applicant"s control, for failing to conclude that the absences were justified and thus the dismissal was unjust.

[35]      The Respondent argues that an employer's policy regarding conditions of employment can become an implied term of the employment contract and breach of such a term may justify dismissal. In this respect, the Respondent argues that the Adjudicator was correct in finding that there was an implied term in the Applicant's contract that if he chose not live outside of Portage la Prairie, it was his sole responsibility not to miss work for reasons relating to the commute and that if he did, he would be terminated.

E. Analysis

     1. Did the Adjudicator make a jurisdictional error?

[36]      To answer this question in the positive, the Applicant argues that CFRY and the Adjudicator are bound by the information provided in the letter dated April 23, 1996 in response to the inquiry by the Labour Affairs Officer and were not entitled to rely on or introduce any additional information regarding the Applicant's previous work history.

[37]      The general proposition regarding this assertion is set out in M. Norman Grosman, Federal Employment Law in Canada (Toronto: Carswell, 1990) where it states that:

The general rule, therefore, which appears to have been universally recognized and accepted by adjudicators is that the responding employer is limited at the hearing, in terms of its justification for the individual's dismissal, to those matters raised in its letter of response to the inspector from Labour Canada.

[38]      To answer this question in the negative, the Respondent relies on the "doctrine of culminating incident" which is fully described in Brown & Beatty, Canadian Labour Arbitration, 3^rd edition, pp. 7-166 to 7-179³.

[39]      I find that it is not an error to accept the "doctrine of culminating incident" as an exception to the general rule cited by the Applicant. I also find that the reasons the Adjudicator gave clearly show the correct application of this legal principle. Once the Adjudicator found that there were grounds for disciplinary action, I find it was certainly open to him to inspect the whole record of poor job performance to conclude whether the action taken by the employer was unjust. I find no error in his assessment that the action was not unjust.

[40]      Thus, with respect to whether the Adjudicator exceeded his jurisdiction, I cannot say that his assessment of the circumstances surrounding and leading up to the Applicant's dismissal was incorrect, and thus I find no jurisdictional error exists.

     2. Was the Adjudicator"s finding patently unreasonable?

[41]      In my view, there was ample evidence in the record to support the Adjudicator's finding that the employer"s dismissal of Mr. Ackman was not unjust, and I am unable to characterize his decision as "clearly irrational and is not in accordance with reason". Therefore, I cannot conclude that his conclusion was patently unreasonable.

[42]      Accordingly, I dismiss the Applicant"s application. As I can see no special reason to do so, I make no award as to costs.

    

     Judge

__________________

¹      Air Canada v. Norman J. Davis 72 F.T.R. 283.

²      Canada (Attorney General) v. Public Service Alliance of Canada [1993] 1 S.C.R. 941 (S.C.C.).

³      The doctrine of the culminating incident delineates those circumstances in which it is proper for the employer to consider an employee's past employment record in matters pertaining to discipline. Where, by the terms of the doctrine, an employer is permitted to review an employee's past record of discipline, its effect is nothing more than the converse of the proposition that an employee's long and blameless employment record may properly be relied on by an arbitrator to ameliorate a disciplinary penalty. Specifically, the doctrine of the culminating incident posits that where an employee has engaged in some final, culminating act of misconduct or course of conduct for which some disciplinary sanction may be imposed, it is entirely proper for the employer to consider a checkered and blameworthy employment record in determining the sanction that is appropriate for that final incident. Just as in criminal law, arbitrators recognize that the penalties for a second, third and fourth offender may increase with each succeeding offence. In one sense, the doctrine simply purports to accommodate the employer's legitimate interest in being able to terminate the employment of someone who, but for such a doctrine, could with impunity commit repeated infractions of diverse company rules and policies and generally perform in an unsatisfactory manner without fear of being discharged, so long as she did not commit a serious offence or did not persist in misconduct of the same type. Put somewhat differently, the doctrine permits the employer to adduce evidence with respect to the grievor's prior blameworthy employment record in order to justify its disciplinary action on the occasion of some final act of misconduct which, standing alone, might not warrant the severity of the penalty imposed....
The final incident. It follows from the definition of the doctrine that as a condition precedent to its invocation, an employer must affirmatively prove some final incident of misconduct which itself is deserving of some discipline. While it has been suggested that a "trivial offence" ought not to be sufficient to satisfy the rule, for others, the condition has been held to have been satisfied, and the prior record of the grievor properly considered, even where the final act is deserving of only a written warning....
Use of the prior record. Assuming that the employer is able to prove the existence of a culminating incident, it has been held that it must also show that the matters in that record on which it relies were brought to the employee's attention before they can be raised to support the penalty imposed. [Footnotes deleted]