Date: 20010808
Docket: T-611-99
BETWEEN:
ESKASONI BAND COUNCIL
APPLICANT
- and -
CANADA (Adjudicator, Eric Demont, Q.C., appointed pursuant to s. 242 of the
Canada Labour Code) and BARRY WALDMAN
RESPONDENT
MacKay J.:
ORDER
Upon application by the applicant Eskasoni Band council for judicial review and an order setting aside the determination, dated March 02, 1999, by an adjudicator appointed pursuant to the Canada Labour Code, who found that the respondent, Barry Waldman, had been unjustly dismissed from employment by the applicant, and was entitled to an award of damages;
Upon hearing counsel for the parties at Halifax, on November 15, 2000, when decision was reserved, and upon consideration of submissions then made:
IT IS ORDERED THAT
[1] The application is dismissed, with costs to the respondent Barry Waldman on the normal party and party basis, as counsel for the parties may agree, or failing agreement as may be taxed under the Court's Rules.
[2] The respondent Barry Waldman shall be paid interest at the rate of 5% per annum from the date of the adjudicator's award to the date of payment.
"W. Andrew MacKay"
JUDGE
Date: 20010808
Docket: T-611-99
Neutral Citation: 2001 FCT 867
BETWEEN:
ESKASONI BAND COUNCIL
APPLICANT
- and -
CANADA (Adjudicator, Eric Demont, Q.C., appointed pursuant to s. 242 of the Canada Labour Code) and BARRY WALDMAN
RESPONDENT
REASONS FOR ORDER
MacKAY J.:
[1] The applicant seeks judicial review of, and an order setting aside a decision dated March 2, 1999 pursuant to s. 242 of the Canada Labour Code ("the Code") by Eric Demont, Q.C., an adjudicator appointed in accord with the Code, whereby he upheld, and awarded remedies for, Mr. Waldman's claim that the applicant, Eskasoni Band Council, had unjustly dismissed him from employment.
[2] The decision to dismiss him was the subject of a request by Mr. Waldman that his complaint of unjust dismissal be referred to an adjudicator under the Code. Following the adjudicator's decision, this application was filed on the grounds that the adjudicator erred in law in determining a matter of jurisdiction, that is, in finding that Mr. Waldman was not a manager under the Code, and that the adjudicator reached patently unreasonable conclusions on a number of issues of fact. There are a number of the latter type of issues, which I deal with in turn, after review of the basic facts and consideration of the issue of jurisdiction.
[3] I note that at the hearing before me the respondent, Canada as represented by the adjudicator, did not participate. The applicant Eskasoni Band Council, and the respondent, Barry Waldman were both represented by counsel.
The Background
[4] Mr. Waldman was employed on July 9, 1990, and his employment was terminated on March 3, 1998, when he was serving as Director of Planning at the Unama'ki Training and Educational Centre (the "TEC"). That Centre, originally established to provide trades training at the secondary school level, began to develop an academic program in 1993, as an alternative high school program for students who had problems with the provincial program offered through the public school system in Sydney under the Cape Breton-Victoria Regional School Board.
[5] In the mid-1990's, under the Band Council's leadership with assistance of an outside consultant, planning for financing and construction of a new high school on the Eskasoni Reserve were made. As those plans developed Mr. Waldman had differences of opinion about the evolving plans, differences which led to objections on his part and ultimately, on March 3, 1998, to the termination of his employment.
[6] By letter of March 13, 1998 Mr. Waldman was advised by the Band Adjudicator that his termination by the Band Council was for cause, in that,
1) he had defamed Chief Allison Bernard at a meeting with others in February 1998;
2) he had commented during a meeting with Band Department Heads and representatives of the Department of Indian Affairs and Northern Development ("DIAND") that departmental officials should impose accountability for the Council's receipt and use of funds from gaming and tobacco sales, alleging corrupt practices at Eskasoni. This matter was considered by both Band and DIAND Representatives to be inappropriate for discussion at the meeting, and they then so indicated; and
3) he was responsible for a letter to the Council in July 1996 when the Band Council had resolved to reprimand Waldman, as set out in minutes of a Council meeting at the time.
.
[7] After hearing evidence adduced by both the Band Council and Mr. Waldman, the adjudicator held that Mr. Waldman was not a manager within s-s 167(3) of the Code and, that while his actions warranted discipline, he had been unjustly dismissed by the Band Council. He ordered monetary damages paid to Mr. Waldman. From that decision this application for judicial review was initiated.
The standard of Review
[8] Counsel for the Eskasoni Band Council and for Mr. Waldman were agreed that correctness was the standard of review applicable in relation to the issue concerning the adjudicator's jurisdiction, that is, the decision whether Mr. Waldman was a "manager" within the meaning of that term under the Code. If he was a manager, the adjudicator had no jurisdiction to consider his claim for wrongful dismissal. The standard of review on this issue is "correctness" since it determines the adjudicator's jurisdiction. (See: CIBC v. Bateman, (1991), 41 F.T.R. 218 aff'd (19920, 140 N.R. 399 (F.C.A.); and Canada Post Corporation v. Pollard, (1993), 161 N.R..66 (F.C.A.)).
[9] Counsel for both parties were also agreed that the standard of review in relation to determinations of fact by the adjudicator is "patent unreasonableness", in view of the comparative expertise of the adjudicator in determining issues of fact, and issues of process, within his jurisdiction. The court will only intervene where a determination is not supported by any relevant evidence before the adjudicator, or where there is procedural unfairness.
[10] I note that on issues other than the status of Waldman as a manager, the applicant Band urges that the adjudicator exceeded his jurisdiction by findings that he made. Those findings in my opinion, were within his jurisdiction unless the court is persuaded that they were patently unreasonable on the evidence before the adjudicator.
The Jurisdictional Issue
[11] The adjudicator determined that Mr. Waldman was not a "manager" within the meaning of that term under s.s. 167 (3) of the Code, which provides that, with respect to a complaint of unjust dismissal, the Code does "not apply to or in respect of aemployees who are managers". The Code does not define "managers" but judicial decisions have provided guidance on the meaning to be given to the term.
[12] For the applicant Band Council it is urged that evidence, which I note was primarily provided by correspondence or testimony of Mr. Walkman himself, about his responsibility as one of three directors, and later the only one, responsible for operations of TEC, including development of proposals for funding, preparation of budgets, administrating the 19 programs offered by TEC to nearly 350 students, with a complex schedule of classes and a staff of 24 others. In his decision the adjudicator referred to this evidence. It was not ignored.
[13] This evidence was considered, but the adjudicator noted that by his own evidence Mr. Waldman was one of three directors of the TEC who shared responsibilities. There was no evidence he had the power to hire, discipline or fire any employees, rather the evidence before the adjudicator was that the Band Administrator, as CEO of the Band, was responsible for hiring, evaluation and firing staff. Mr. Waldman did not set a budget but was involved with others, in proposing budgetary matters to the Band Council which retained the authority and responsibility for budgets of the TEC, as for other operations of the Band.
[14] In reliance upon the Court of Appeal decisions in Bateman, and in Lee-Shanok v. Banca Nazionale DelLabore, (1987) 3 F.C. 578 (C.A.), the adjudicator assessed the evidence of responsibilities of the respondent Waldman, acknowledging that he appeared to exercise a measure of independent action and discretion, but his actual functions, apart from program direction within the TEC's programs, were subject to approval of the Band Council or the Band administrator on its behalf.
[15] In the final analysis the adjudicator held that the burden of establishing that Mr. Waldman was exempt from consideration under the Code as a "manager" lay with the applicant Band Council. He found that there was not sufficient evidence to support a conclusion that the duties of Mr. Waldman, excluded him from consideration under the Code as a "manager". Thus the adjudicator maintained jurisdiction to deal with the complaint.
[16] In so doing, in my opinion, the adjudicator was correct. Mr. Walkman's responsibilities were limited. He was not a manager with any measure of authority and discretion, except within the program operations of TEC. His budgeting, financing and supervising activities were ultimately determined within the responsibility of the Band Council, which approved or disapproved his recommendations, made with others.
[17] There is no basis to set aside the adjudicator's decision on the question of his jurisdiction to deal with the complaint of Mr. Waldman.
Assessing the claim for unjust dismissal
[18] The applicant Band Council urges that the adjudicator made several errors, some going to jurisdiction, in assessing the claim for unjust dismissal. These, I deal with in turn.
[19] First, it is said that the decision erred in law by reading into the Code a requirement that the employer follow a philosophy of progressive discipline where the Code itself included no such requirement.
[20] In his decision the adjudicator stated:
Firmly embedded in the law of employer and employee relations is as the philosophy of progressive discipline. Although there are some causes such as theft or violence which can justify immediate dismissal, the theory of progressive discipline requires an employer, before dismissing an employee, to use less severe forms of discipline to serve as a warning to an employee that a continuation or repetition of acts detrimental to the employer could result in a more serious form of discipline such as dismissal.
[21] There is no doubt that the philosophy of progressive discipline is an important concept within the law of employer and employee relations. Mere reference to that philosophy by the adjudicator was not, in my opinion, an incorporation of that within the Code. Rather, the reference provided a circumstance within which the conduct of the respondent Mr. Waldman was reviewed in assessing whether his conduct, as complained of, warranted dismissal. In so considering, in my opinion the adjudicator did not err in law, and as a basis for reviewing his conduct in light of that philosophy or principle of progressive discipline the adjudicator's ultimate finding, that dismissal was unjust, was not patently unreasonable. He found that there was no evidence of any disciplinary action by the Band Council against Mr. Waldman prior to his dismissal for conduct in 1998, which the adjudicator found did not in itself warrant dismissal.
That conclusion, in my opinion was not patently unreasonable on the evidence before him.
[22] Second, for the applicant Band Council it is urged that the adjudicator erred, in a patently unreasonable finding that, to warrant disciplinary action Mr. Waldman's conduct must be demonstrated to have caused actual harm to his employer. With respect, as I read his decision the adjudicator made no such finding. At least no finding of this nature was expressed. Moreover, he did find that the respondent's conduct was such that it would have warranted discipline in the form of suspension for perhaps two weeks, but it did not warrant dismissal. I do not find the applicant's submission on this ground relevant to the facts in this case.
[23] Third, it is urged the adjudicator was patently unreasonable in finding that Mr. Waldman was not reprimanded for his action on July 18, 1996, and his action, the letter he wrote and sent, was not inflammatory and tending to blame unduly the employer.
[24] As I read the adjudicator's decision, his findings about the incident in 1996 when Mr. Waldman wrote a letter to the Council were that Mr. Waldman was present at the Council meeting when the minutes recorded Council's decision that he should be reprimanded and he was requested to write a letter of apology, that he knew he had been reprimanded and he had written the requested letter of apology. The adjudicator found that no action was subsequently taken on behalf of the Band Council to write to Mr. Waldman or to impose discipline upon him. Finally in his comments about Mr. Waldman's conduct not being inflammatory and not unduly blaming the Council, the adjudicator was clearly referring to the terms of the letter written in 1996 and that description of the letter cannot be said to be a patently unreasonable finding of fact. It was an assessment of the nature of the text.
[25] As for the assessment of Waldman's later conduct in 1998, the comments made about the Chief at a meeting with others are described as "obviously unjustified and provocative and obviously are justification for discipline". Further, his conduct in activities with respect to the Band, devoted primarily to the protection of funding for the TEC, including his comments at a meeting of Band and DIAND representatives are characterized by the adjudicator as "very aggressive".
[26] In my opinion the argument for the Band Council on this issue is not well placed. The adjudicator did recognize that Waldman had been reprimanded at a Council meeting in 1996, but no reprimand or discipline was subsequently administrated. His conduct in 1998 did warrant discipline.
[27] Fourth, it is urged that the adjudicator erred by a patently unreasonable finding that Mr. Waldman's conduct between July 1996 and March 1998 did not provide just cause for dismissal.
[28] I am not persuaded that this finding was patently unreasonable. The adjudicator reviewed the evidence before him of the three incidents of conduct set out as the bases for Council's action in dismissing Mr. Waldman. I am not persuaded that in so doing he ignored the duty of loyalty owed to an employer, as claimed by the Council here. Indeed that was the basis for his conclusion that the 1998 disparaging comments of the Chief in a meeting with third parties, warranted disciplinary action.
[29] The adjudicator may have placed less weight than the Band Council urged, on the incident of comments by Waldman at a meeting of representatives of the Band and of DIAND, concerning his view of a need for greater accountability. The evidence was that after his reference, Band and DIAND representatives commented that the matter was not for discussion in that setting. Mr. Waldman had then desisted. There was no evidence that he had repeated these comments outside that meeting or that his disparaging comments about the Chief at another meeting were communicated by him to anyone outside that other meeting.
[30] In my opinion, the adjudicator's conclusion, on review of the conduct of Mr. Waldman, was not without support in the evidence. It cannot be considered as patently unreasonable.
[31] Fifth, the Band Council submits that the damages awarded by the adjudicator were patently unreasonable and contrary to legal principles. It is acknowledged that unless there is just cause for dismissal, an employer must provide reasonable notice of termination, where the contract of employment does not provide a notice period. In the absence of notice the employee is entitled to payment of remuneration for the notice period. In Bardal v. The Globe and Mail Limited, (1960), 24 D.L.R. (2d) 140 as 145 (Ont H.C.), (cited with approval in Machtinger v. HOJ Industries Limited, (1992) I.S.C.R. 986 at 988) reasonable notice is to
be decided with reference to each particular case having regard to the character of the
employment, the age of the servant, and the availability of similar employment having
regard to the experience, training and qualifications of the servant.
[32] Those cases were not decided under the Code. With reference to the Code's provisions concerning unjust dismissal Mr. Justice Mahoney of the Court of Appeal stated in Davidson v. Slaight Communications, [1985] 1 F.C. 253 at 260 (F.C.A.), aff'd. [1989] 1 S.C.R. 1038:
The intent of s. 61.5(9) (now 342(4) is to empower the adjudicator as near
as may be, to put the wronged employee in the position of not suffering an
employment related disadvantage as a result of his unjustified dismissal.
That principle was applied in Wolf Lake First Nation v. Young, (1997), 130 F.T.R. 115.
[33] In this case, the adjudicator referred to, and took account of Mr. Waldman's annual salary at the time of his dismissal and the annual salary including vacation pay and travel he was paid at a position he accepted within a week or two of his dismissal. The adjudicator then continued:
112. In view of his years of service, and his age, and the level of salary
indicating a senior position and considering the manner of his dismissal, and
the humiliation of being escorted off the premises, he would be entitled to 10
months salary. I, therefore, award damages in the amount of $23,750.00,
calculated as follows, $57,000.00 - $27,000 ¸ 12 x 9.5 = $23,750.00.
As I interpret that formula, it divides by 12, for a monthly equivalent, the difference between the annual salary paid to Mr. Waldman by the Band Council and the lower salary paid by his succeeding job, and multiplies that result by 9.5, rather than 10 the months of salary suggested by the adjudicator.
[34] In my opinion, the adjudicator referred to the relevant circumstances to be considered, and the formula adopted was intended to reflect his assessment of those circumstances. The decision as to the quantum of damages cannot be said to be patently unreasonable. The respondent Mr. Waldman submits that the award should be confirmed.
Conclusion
[35] In my view, the adjudicator was correct in finding Mr. Waldman was not a "manager" within the meaning of that word in s.s. 167(3) of the Code, and in exercising jurisdiction to deal with the complaint of wrongful dismissal. In the exercise of his jurisdiction I am not persuaded that any of the references or conclusions reached, which the applicant objects to, can be characterized as patently unreasonable.
[36] In the result there is no basis to set aside the adjudicator's decision or his award of damages. Thus, the application of the Band Council is dismissed by separate Order. The respondent Waldman asks for interest from the date of the award at 7% per annum. The Order now issued provides for interest from the date of the award to the date of payment, as pre-and post judgment interest, at the rate of 5% per annum.
[37] The Order also provides for costs to the respondent Waldman, at the usual party and party rate, as counsel for the parties may agree, or failing agreement as may be taxed in accord with the Court's Rules.
"W. Andrew MacKay"
JUDGE
August 8, 2001
Halifax, Nova Scotia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-611-99
STYLE OF CAUSE:Eskasoni Band Council
- and -
Canada (Adjudicator, Eric Demont,Q.C., appointed
pursuant to s. 242 of the Canada Labour Code) and
Barry Waldman
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: November 15, 2000
REASONS FOR ORDER OF: MacKay, J.
DATED: August 8, 2001
APPEARANCES:
Gary Corsano and Tony Mozvik For Applicant
Douglas MacKinlay For Respondent
SOLICITORS OF RECORD:
Sampson McDougall For Applicant
66 Wentworth Street, Suite 200
Sydney, NS
B1P 6T4 FAX (902)564-0954
MacKinlay Law Office For Respondent
2403 Tower Road, Box 17-4, RR. #1
Glace Bay, NS
B1A 5T9 FAX (902)849-1017
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