Action Express Ltd. v. Shelly Lesy, 2003 FC 1455

Date: 20031211

Docket: T-1985-02

Citation: 2003 FC 1455

Ottawa, Ontario, this 11^th day of December, 2003

Present:           The Honourable Justice James Russell                                  

BETWEEN:

                                                            ACTION EXPRESS LTD.

                                                                                                                                                       Applicant

                                                                                 and

                                                                      SHELLY LESY

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act of the decision of adjudicator Dan R. Cameron, ("Adjudicator") appointed under Division XIV - Part III of the Canada Labour Code in the matter of a complaint alleging unjust dismissal brought by Shelly Lesy ("Respondent") against Action Express Ltd. ("Applicant"), heard on September 16, 2002. In the decision dated October 29, 2002 ("Decision"), with a covering letter dated October 30, 2002 and received by the Applicant on October 31, 2002, the Adjudicator awarded the Respondent seven months pay in lieu of notice.

[2]           The Applicant requests an order quashing or setting aside the Decision and referring the matter back for determination before a new adjudicator.

BACKGROUND

[3]                 The Respondent was employed by the Applicant, a company based in Regina, from May 1994 until late September 2001. The Applicant has a number of contracts with Canada Post in southern Saskatchewan that involve the pick up and delivery of mail. The Respondent was a truck driver for the Applicant in that capacity.

[4]                 Commencing in 2000, the Respondent approached the Applicant on a number of occasions seeking an increase in her salary. No increase was forthcoming. On January 1, 2001, she took a medical leave of absence but returned to work on August 1, 2001, of the same year. During her leave she made a number of telephone calls to Mr. Shane Lincoln, the manager and a partner of the Applicant, in pursuit of a salary increase but she was not able to make contact with Mr. Lincoln.

[5]             In direct testimony, Mr. Lincoln acknowledged that he was aware that the Respondent was attempting to contact him and of the nature of her concern. However, for a number of reasons, he was not able to return to her calls. The Respondent also made her salary concerns known to Mr. Marv Forst, another member of the Applicant's management. In any event, the Respondent's efforts to contact her employer in respect of her salary concerns were not successful.

[6]                 On her return to work from medical leave on August 1, 2001, the Respondent wrote a letter to Mr. Lincoln on or about September 10, 2001. The following excerpt from that letter sets the stage for what was to follow:

Shane -

Since you are not returning my calls, I guess I'll write to you instead.

I'd like to hear from you why you don't think I deserve a raise.

I know Larry figures we're all just "assholes filling seats". But in reality I guess he forgot how if it wasn't for us "assholes" he wouldn't be where he is right now. Nor you.

...

Part of that 6 months off was to rebuild myself for another 7 years of service maybe ... but you know what - the ladies are still hugging me and awful glad to see me back, no more "Larry", but I didn't miss a god-dammed thing. A boss who doesn't fucking care anything about you; all the strain and drain of the physical part of the job AND dealing with the useless postal employees who couldn't fucking do that because the Union wouldn't like it ... give me a break ... and winter is coming ... not to mention you guys wouldn't have all those "laughs" around the shop without me either, would you. Heard about them. Didn't appreciate them.

...

So am I wasting my breath here - or could you consider me being worth more than $6 an hour ? Marvin passes the buck and says you're all having meetings ...? Larry says "not his department - talk to Marvin". How about you ? You're the one that hired me. If this "asshole" in this seat ISN'T worth more - say so; so I can maybe pursue something else. I hear Geordie's happy. And I'm sure Larry Johnson would be thrilled to take over. Just change your phone numbers and move - (and never show your face in those small towns or they'll kill ya).

Some kind of response would be appreciated. Dedication is diminishing fast.

Shelly

If it is strictly a minimum wage job, then I guess I have to accept that; and it would be my own stupidity to stay. Wouldn't it.

[7]                 The letter is undated. However, in direct testimony Mr. Lincoln said he received it between September 10 and 15, 2001. Mr. Lincoln also said he was shocked at the contents of the letter. He indicated that, to that point, he had no concerns with the Respondent as an employee. He described her performance as "outstanding ... one of the best."

[8]                 As a result of this letter, Mr. Lincoln contacted the Respondent by phone two days later. There are differences between the Respondent and Mr. Lincoln as to the tone of that conversation. Mr. Lincoln stated that it was civil. Two witnesses, Mr. Forst who was present in his office, and office manager Ms. Lakeman, who was in an adjacent office, concurred with Mr. Lincoln's assessment.

[9]                 The Respondent, however, described Mr. Lincoln's tone as quite aggressive and testified that he used profanities. Mr. Lincoln said that the Respondent started to cry during their exchange and even offered an apology for the letter. Mr. Lincoln asked that she put her apology in writing. He said that they spoke of the possibility of a raise in salary at some time in the future.

[10]            On or about September 20, 2001, Mr. Lincoln received the following letter from the Respondent. This letter is quoted in its entirety because of its importance for this application:

Shane -

After careful consideration; your "letter of apology with remorse" -

You're not getting one. And I withdraw the verbal one I gave you. I don't lick nobody's boots like that, and I have nothing to apologise for.

Your truck will be at the Post Office at the end of the month.

Along with my last cheque I expect another one for the 2 weeks pay you held back in May of 1994 WITH 7 years and 4 months of compounded interest on it.

If I don't get it; the labour board will get it for me. Don't make me do that.

I'm just sorry you didn't hear me ask "nicely" for over a year.

Goodbye and Good Luck in finding another FOOL (or someone half as dedicated as I was).

Shelly Lesy

At the ladies and Kent's "request" - I may consider staying for a full 27% raise and a letter of apology from you. Short of that happening - see ya. I'm done on the 28^th.

[11]            Mr. Lincoln said he was shocked at the contents of this second letter. He said the letter did not reflect the tone of their earlier conversation. He said he felt the letter left no room for compromise and he felt the employment relationship had likely come to an end and that the Respondent had, in effect, resigned.

[12]            It was also his view that she had directly attacked management in a demeaning way and had directed unacceptable comments at a major client. He was also concerned that she would have use of the company's delivery truck until September 28, 2001, the day on which she said she was leaving, and that she might mistreat that vehicle. He was further concerned that she might adversely affect relations with the company's major client, Canada Port. He said he consulted with Mr. Forst and with a company partner who was a lawyer. The decision they made was that the Respondent's employment should be terminated immediately for cause.

[13]            On or about September 26, 2001, Mr. Forst travelled to Estevan, Saskatchewan. He met the Respondent near the end of the day, informed her she was terminated and retrieved the keys to the company's vehicle. The Respondent was not given reasons for her termination.

[14]            The Respondent subsequently appealed her termination under s. 240 of the Canada Labour Code. Her appeal was referred to adjudication on May 27, 2002, by the Federal Minister of Labour.

DECISION UNDER REVIEW

[15]            The Adjudicator addressed the following questions:

Did the employee resign?

On what basis did the employer terminate the employee?

Did the employer have just cause to terminate?

[16]            The Adjudicator noted that there is a subjective and objective element to a resignation by an employee. He observed that the Respondent threatened to quit, failing an increase in salary, by September 28, 2001. He determined that her threat to quit was conditional:

Where an employee threatens resignation if a demand is not met, the employer is entitled to deny the request, accept the resignation and the employee will be without remedy. We do not know if Ms. Lesy would have actually carried out her threat. Her cross examination response to the question, "If you did not get a raise you were not staying right?" she replied, "Some kind of raise".

Mr. Lincoln viewed this letter as a letter of resignation, that she had, in effect, resigned.

This was not the case. In fact Ms. Lesy was not given the opportunity to carry out her threatened action. In his own direct testimony Mr. Lincoln said the decision was not to wait until September 28^th but to terminate he (sic) employment, with just cause. As well the employer accepted it had a just cause onus at the hearing.

Therefore Ms. Lesy did not resign from Action Express Ltd. She was terminated for cause, in effect a disciplinary termination.

[17]         Upon finding that the Respondent was terminated for cause, the Adjudicator went on to assess the basis on which she was terminated. He noted that although reasons came up at the hearing, there was no letter sent out to the Respondent explaining the reasons for termination. The Adjudicator noted that Mr. Lincoln testified that the Respondent's letter contained a number of disparaging remarks about the Applicant's management and its major client, Canada Post. Mr. Lincoln found both letters sent by the Respondent to be insolent in tone and containing foul language, which amounted to insubordination. He was also concerned that the Respondent had a $45,000 company vehicle in her possession. Given the forgoing, the Adjudicator noted that Mr. Lincoln felt that the employment relationship could not continue. The Adjudicator indicated in his Decision that the only legally defined instance of insubordination that the Respondent engaged in was her refusal to accede to Mr. Lincoln's order that she provide a letter of apology. The Adjudicator found that there is no question that management had just cause to impose a disciplinary sanction on the Respondent for her disparaging and insolent letters.

[18]            The Adjudicator then addressed the question of whether the discipline imposed was appropriate. He noted that Mr. Lincoln was of the view that, because of the Respondent's actions, her employment relationship with the Applicant was beyond repair. The Adjudicator accepted that this is the type of situation where termination might be appropriate.

[19]            The Adjudicator listed the following factors that the Applicant might have taken into consideration in reaching its decision to terminate:

Ms Lacy (sic) was a long time employee with a clean employment record.

Her record of service, in managements view, was "outstanding"

The termination of a long time employee on the basis of a single incident of misconduct is exceptional and is only appropriate where the misconduct is extremely prejudicial to the employer.

There is no evidence the employer considered the use of progressive discipline.

There is no evidence that Ms. Lesy ever made disparaging remarks about Canada Post to anyone in that company. Indeed, Ms. Lesy submitted 3 letters of commendation from 3 Canada Post Postmasters. While such documents are given limited weight, no objection was raised to the submission by the employers counsel.

Mr. Lincoln admitted he had never had a complaint from Canada Post regarding Ms. Lesy.

There is no evidence, based on past performance that Ms. Lesy had ever been abusive with Action Express vehicles.

While Ms. Lesy's language may have been crude and vulgar foul language in itself may not be a basis for just cause. It is safe to assume that words such as "fuck" are not unknown in the trucking industry.

Many cases have said that the employer has a duty of fairness to let an employee respond to an employers concerns. Ms. Lesy was not given this opportunity. In effect she was terminated on the basis of 2 letters and a telephone conversation.

[20]            The Adjudicator then went on to canvass the Applicant's arguments justifying termination and concluded that the Applicant had grounds for discipline against the Respondent, but not sufficient grounds for termination. He then reached the following significant conclusion:

Mr. Jordan suggests that had Ms. Lesy not been terminated, her work would have ended in 8 days, ie: on her intended date of resignation. Consequently the employer's payment obligation should be limited to 8 days.

The reality is she did not get the opportunity to act on her threatened course of action. Her employers actions denied her that opportunity. We can not know for certain what she might have done on Sept 28, 2001. Whether Ms. Lesy would have actually resigned is hypothetical and speculative.

[21]            The Adjudicator awarded the Respondent one month of salary for each of her seven years of employment with the Applicant.

PERTINENT LEGISLATION

[22]        The relevant statutory provisions appear in Division XIV - Unjust Dismissal of Part III of the Canada Labour Code, R.S.C. 1977-78, c. 27, s. 21, and read as follows:

ISSUES

[23]            The Applicant raises the following issues:

Did the Adjudicator err in finding that the September 20, 2002 letter was not a letter of resignation so that he lacked the jurisdiction to consider the Respondent's appeal under the Canada Labour Code?

If the Adjudicator did have the jurisdiction to consider the Respondent's appeal, did he make so many errors of fact and law that the Decision is patently unreasonable?

ANALYSIS

What is the Appropriate Standard of Review?

[24]            Notwithstanding s. 243 of the Canada Labour Code, this court may judicially review an adjudicator's decision on the grounds that an adjudicator either never had jurisdiction or exceeded or failed to exercise jurisdiction that he or she did have (Pioneer Grain Company Limited v. David Kraus, [1981] 2 F.C. 815 (F.C.A.).

[25]            The standard of review for decisions rendered by adjudicators appointed pursuant to s. 242(1) has been held to be patent unreasonableness when the question is one of fact which is within the tribunal's powers (Lamontagne v. Climan Transportation Services, [2000] F.C.J. No. 2063 (2747-7173 Québec Inc.),(F.C.T.D.)).

[26]            Muldoon J. indicated in Mihalicz v. Royal Bank of Canada (1998), 160 F.T.R. 1 (affirmed (2000) 258 N.R. 89 (F.C.A.)):

27. The nature of judicial review is to determine whether it was open to the tribunal, or adjudicator, to make the decision that it did on the basis of the evidence that was before it. The Court must ask itself this question: did Parliament intend, either explicitly or implicitly, the question at issue to be within the jurisdiction of the tribunal, or adjudicator? If the answer is yes, the Court must be chary of intervening unless the adjudicator has erred in a patently unreasonable manner. Indeed, the patently unreasonable test requires Courts to accord curial deference to the adjudicator's decision, as it is in the specialized realm of labour.

28. With regard to the appropriate standard of review, it is instructive to refer to the recent Supreme Court of Canada decision in Toronto Board of Education v. Ontario Secondary School Teachers' Federation, District 15, [1997] 1 S.C.R. 487 where it was held that in a labour relations context, the standard of patent unreasonableness is the most appropriate one, given the functional and pragmatic analysis mandated by Bibeault (supra) and P.S.A.C. No. 2 wherein Cory J., for the majority, recognized that the legislators of Parliament have determined, in their wisdom, that arbitration board members with their experience and specialized knowledge, should be the ones who resolve labour disputes. The same reasoning can be applied to an adjudicator appointed under section 242 of the Code.

[27]            Rouleau J. has also commented in a helpful way on the need for curial deference in this context in Kelowna Flightcraft Air Charter Ltd. v. Kmet (1998), 149 F.T.R. 246 (F.C.T.D.):

17.       It is immaterial therefore, whether the Court agrees with the tribunal's conclusion on the issue before it. Provided the decision does not contain such a grievous error of law as to be a misinterpretation of the statutory provisions under which it was made, it is not based on a material finding of fact for which there is no evidence, or the tribunal has not exceeded its jurisdiction in some other way, the decision will not be interfered with. In order for the Adjudicator's decision to be considered patently unreasonable, it must be found by the court to be clearly irrational insofar as there is no evidence to support it.

[28]            In Sagkeeng Education Authority Inc. v. Guimond (1995), 16 C.C.E.L. (2d) 259, 103 F.T.R. 274 (F.C.T.D.), Noël J. found that an essential precondition to an Adjudicator's jurisdiction under Rule 242 was that "the complainant establish that he or she has been dismissed":

9.       An essential pre-condition to an adjudicator's jurisdiction to consider a complaint of unjust dismissal under subsection 240(1) of the Canada Labour Code is for the complainant to establish that he or she has been dismissed. The Federal Court of Appeal, in Srougi v. Lufthansa German Airlines, reviewed the meaning of "dismissal" and its significance as a pre-condition to the adjudicator's jurisdiction: [(1988), 93 N.R. 244 (F.C.A.), at p. 247 (hereinafter Srougi)]

The dismissal is the implementation by the employer of his intention to unilaterally terminate the contract of employment binding him to his employee. This implementation may occur in various ways and there is no basis for thinking that in s. 61.5 [now ss. 240-246] the legislator intended to cover only one of them, even if that one was the most simple, direct or usual. Of course, the adjudicator must have before him a dismissal, that is to say, the employer's actions must disclose a definite intention to unilaterally terminate the contract of employment (and that is all that was at the basis of the decision in Eskasoni School Board, supra), but once this is established there is in our opinion no question as to his jurisdiction..

The determination of whether the respondent was dismissed by the applicant is thus a pre-condition to the Adjudicator's jurisdiction. According to the decision of the Supreme Court of Canada in Bibeault and the jurisprudence reviewed above, the standard of judicial review on a jurisdictional question such as the interpretation of subsection 240(1) is one of correctness. Although the decision of an adjudicator appointed under the Canada Labour Code is protected by a finality clause, it is well established that the requirement that an administrative tribunal be correct in its interpretation of a jurisdiction-conferring statutory provision nevertheless applies. [See Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at p. 1003 per La Forest J...]

[29]            In the case at bar, the standard of review is correctness as regards the jurisdictional issues raised. Assuming I conclude that the Adjudicator had jurisdiction to hear the Respondent's appeal under the Canada Labour Code, I cannot interfere with the Decision unless I conclude the Adjudicator committed a patently unreasonable error of the kind referred to in the relevant jurisprudence.

Did the Adjudicator err in finding that the September 20, 2002 letter was not a letter of resignation so that he lacked the jurisdiction to hear the Respondents appeal under the Canada Labour Code?

[30]        The Applicant submits that the Respondent's letter of September 2001 to the Applicant indicated a clear resignation to take effect September 28, 2001, and also amounted to a clear repudiation of the contract of employment that the Applicant was free to accept and did accept.

[31]            In deciding whether an employee's words amount to a resignation, the court should look to what a reasonable person would understand from a statement (Eichenberger v. Health Consultants Ltd. (1997), 33 C.C.E.L. (2d) 262 (B.C.S.C.); Maguire v. Sutton (1998), 34 C.C.E.L. (2d) 67 (B.C.S.C.)).

[32]        In Eichenberger, supra, Cohen J. noted as follows:

10.       The test for determining whether an employee's words amount to a resignation is an objective one. The court will consider what a reasonable person would understand from the statement in all of the surrounding circumstances. ...

[33]            In Maguire, supra, Bauman J. considered whether the plaintiff employee voluntarily resigned or was constructively dismissed by conducting an objective analysis and considering whether a discernable offer and acceptance of resignation in fact occurred:

43.       On 4 March 1996 the plaintiff did hand the note of resignation and her office key to the defendant.

44.       It is true that the note was the product of an emotional and stressful weekend for the plaintiff but it is difficult to characterize the resignation tendered by the plaintiff as a spontaneous outburst in highly charged emotional circumstances thereby undermining its essential voluntariness.

45.       On the issue of resignation, the plaintiff cites Assouline v. Ogivar Inc. (1991), 39 C.C.E.L. 100 (B.C.S.C.) and Cox v. Victoria Plywood Co-Operative Association (1993), 2 C.C.E.L. (2d) 78 (B.C.S.C.).

46.       The test, simply articulated by Millward J. in Assouline, is this (at 104):

Given all the surrounding circumstances, would a reasonable man have understood by the plaintiff's statement, that he had just resigned.

47.       There is no doubt that, taken alone, the note and its delivery with the office key to the defendant would represent an unequivocal resignation by the plaintiff. However, it is not appropriate to view the delivery of the note and the key in isolation of the surrounding circumstances.

48.       When the note and key were delivered to the defendant, he indicated a desire to discuss matters with the plaintiff and she readily acquiesced. There followed a prolonged (at least one hour or more) and tearful (on the defendant's recounting) conversation between the parties in the plaintiff's car. That conversation was highly ambiguous: the parties were emotional, the conversation was not organized (the defendant's characterization), the outcome was unclear and the key was returned (the defendant didn't even know why).

49.       Out of all of this, the defendant asserts that he thought that the plaintiff had maintained her desire to resign and the plaintiff thought that she had resiled therefrom and agreed to stay on in her employment. I find each party's conduct after the conversation to be consistent with their perception of the outcome of the meeting. That is, the next day the defendant announced to his staff that the plaintiff had resigned, and the plaintiff, in her telephone conversations with Townes and the defendant, indicated that she did not consider herself to have resigned.

50.       If I concluded that objectively the plaintiff had completed the act of resignation and that the defendant had accepted it, I would further conclude that what followed in the car was too equivocal to support a finding that the defendant had reinstated the plaintiff. But I do not analyze the facts in that manner. Rather, I conclude that the ambiguity of the parties' actions tainted the completeness of the legal act of resignation. While the plaintiff started to resign, she never unequivocally and clearly did so.

[34]            The Applicant submits that there was nothing ambiguous about the Respondent's September 20, 2002 correspondence: "Your truck will be at the Post Office at the end of the month ... . Goodbye and Good Luck finding another FOOL. I'm done on the 28^th." Further, there was nothing speculative about the determination of whether the Respondent would have quit.

[35]            The following question and answer is transcribed at page 5 of the Adjudicator's decision: "If you did not get a raise you were not staying right?" [the Respondent] replied. "Some kind of raise." There was no evidence at all before the Adjudicator to support his conclusion that "Ms. Lesy did not resign from Action Express Ltd." or that "we do not know if Ms. Lesy would have carried out her threat."

[36]            I agree with the Applicant that, in her second letter to the Applicant of September 20, 2001, and in her evidence at the hearing, the Respondent indicated quite clearly and unequivocally that she would be leaving the Applicant's employ on September 28, 2001. This was a resignation. However, this does not completely decide the jurisdiction issue.

[37]            Before the Respondent's resignation could take effect on September 28, 2001, the evidence is clear that the Applicant carried out a pre-emptive dismissal of the Respondent on September 26, 2001. The Applicant could merely have asked the Respondent not to work the remaining days until her resignation took effect, but it went further and dismissed her. In other words, the Applicant accepted the Respondent's resignation but it dismissed her while she remained an employee of the company and before her employment status came to an end on September 28, 2001.

[38]            Hence, in my opinion, a dismissal occurred and the Adjudicator had the jurisdiction to hear the Respondent's appeal in accordance with s. 241 of the Canada Labour Code. There was no incorrectness in this regard. However, in hearing that appeal the Adjudicator could not leave out of account that the Respondent had indicated a clear intent to leave the employ of the Applicant on September 28, 2001.

Was the Decision, in any event, patently unreasonable?

[39]            Because the Adjudicator concluded that "we do not know if Ms. Lesy would have actually carried out her threat," he disregarded her clear intention to leave the employ of the Applicant on September 28, 2001, in his consideration of both the wrongful dismissal aspect of the Respondent's appeal and his consideration of the damages that the Respondent should receive. This was a reviewable error. The Respondent's letter of September 20, 2001 - "I'm done on the 28^th" - and the evidence she gave at trial provide no basis for the Adjudicator's conclusion that there was doubt concerning the Respondent's intention to leave on September 28, 2001. Such a conclusion was patently unreasonable, given the evidence before the Adjudicator. That resignation was accepted by the Applicant and the Applicant was at liberty to terminate the employment relationship before the date was reached. See Redpath Industries Ltd. v. Ison (1985), 9 C.C.E.L. 1 (Ont. S.C.)

[40]            The Applicant raises other factors in the Decision as grounds for a finding of patent unreasonableness. However, it is not necessary to consider them at this stage. The Decision is fundamentally flawed by the Adjudicator's finding that the Respondent's intention to leave on September 28, 2001, was in doubt and everything else he decided flowed from this false conclusion. This matter must be returned for reconsideration.

                                                  ORDER

THIS COURT ORDERS that

1.          The Application for judicial review is allowed and the decision of the Adjudicator is quashed.

2.          The matter shall be returned for reconsideration by a different adjudicator in accordance with these reasons.                                                                

"James Russell"

J.F.C.

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:T-1985-02

STYLE OF CAUSE:ACTION EXPRESS LTD. v. SHELLY LESY

T-1985-02

PLACE OF HEARING:Regina, Saskatchewan

DATE OF HEARING:September 25, 2003

REASONS FOR :Order and Order

DATED:December 11, 2003

APPEARANCES:

Mr. Terry D. JordanFOR APPLICANT

No AppearanceFOR RESPONDENT

SOLICITORS OF RECORD:

WILLOWS, TULLOCH & HOWEFOR APPLICANT

Regina, Saskatchewan

No AppearanceFOR RESPONDENT