Date: 20080124
Docket: T-1177-07
Citation: 2008 FC 95
Ottawa,
Ontario, the 24th day of January 2008
Present:
the Honourable Mr. Justice de Montigny
BETWEEN:
SANDRA
SIGOUIN
Applicant
and
NATIONAL
BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an application
for judicial review of a decision by an adjudicator on May 30, 2007, dismissing the applicant’s complaint and upholding
the dismissal by the respondent. I would allow this application for judicial
review for the reasons that follow.
FACTS
[2]
The applicant had
worked for the respondent since June 30, 1986: she held several positions in
various departments. On May 2,
2005, the applicant applied
for the position of administrative officer, Special Loans. Despite the fact
that she did not have the academic training suggested for the position, she got
it and began her new duties on July 18, 2005.
[3]
In the next two weeks
the applicant worked under the supervision of Christine Dusseault. However, the
applicant maintained that she could not be properly trained during this period
on account of the large number of files that had accumulated following Ms.
Dusseault’s vacation. At the end of this period the applicant retained the
right to consult Ms. Dusseault when necessary.
[4]
The head of the
department, Chantal Evoy, quickly noticed the errors of inattention made by the
applicant. When informed of this, the applicant promised to be careful.
[5]
On November 14, 2005, the applicant made a self-appraisal in which she
acknowledged certain of her shortcomings. She met with Ms. Evoy to complete
this appraisal on December 7, 2005. A plan of action for improved
performance was prepared by Ms. Evoy and accepted by the applicant on December 14, 2005.
[6]
However, the applicant
was unable to achieve the objectives set: Ms. Evoy accordingly contacted the
human resources office to initiate the procedure required for cases of
incompetence. On January 23, 2006, a letter was sent to the applicant telling
her that she would be dismissed if the objectives set were not met before February 15, 2006.
[7]
On January 27, 2006,
the applicant failed to renew a letter of credit, which caused the respondent
to lose US$830,000. In her testimony before the adjudicator, she admitted that
this was her mistake: she had not seen the date despite the schedule sent to
her daily. Consequently, the applicant received a letter of dismissal on January 31, 2006.
[8]
On June 9, 2006, the
applicant filed a complaint for unjust dismissal with the Department of Human
Resources Development Canada pursuant to section 240 of the Canada Labour
Code, R.S.C. 1985, c. L-2 (the Code). This complaint was dismissed by an
adjudicator on May 30, 2007.
IMPUGNED DECISION
[9]
The applicant
maintained that her dismissal was a disciplinary action which resulted from her
failure to renew a letter of credit, and not an administrative action resulting
from her incompetence. She asked to be reinstated or, failing that, to be given
a compensatory payment equivalent to one year’s salary.
[10]
For its part, the
respondent argued that this was a purely administrative action resulting from the
many errors of inattention made by the applicant. It admitted having set the
date of February 15, 2006 to terminate the employment but considered that it
was justified in doing so immediately after the applicant’s serious omission
which caused it to lose US$830,000. The respondent mentioned that it had done
everything in its power to help the applicant to overcome her shortcomings.
[11]
The adjudicator
concluded that the dismissal was indeed an administrative action taken on
account of the incompetence shown by the applicant in the performance of her
duties.
[12]
He noted that there was
no evidence to indicate that the applicant had made this type of error
previously or that her problems of inattention resulted from the state of her
health. In fact, there was nothing in the evidence to explain the problems
encountered by the applicant. The adjudicator also mentioned that the
applicant’s supervisor knew three months after the applicant began work in this
new position that she would be unable to perform her duties properly. However,
the adjudicator said that the applicant was not clearly informed that she
should be transferred to another department, and failing that she would be
dismissed.
[13]
The adjudicator went on
to consider the question of whether the respondent had complied with the
requirements for getting rid of an incompetent employee. The adjudicator
mentioned that the respondent had to tell the applicant about the shortcomings
in her work, give her proper support to correct those shortcomings and achieve
the objectives sought, allow her a reasonable time in which to do this and
inform her of the risk of dismissal which she ran if there was no improvement
by her.
[14]
The adjudicator
considered that this was a valid dismissal since the respondent had complied
with all the requirements. He mentioned that the applicant knew what her
employer expected of her. Not only was she told several times, she was also notified
in writing in her appraisal of December
7, 2005. The adjudicator
further noted that a plan of action had been established to help the applicant
meet her objectives. He considered she had received adequate support: she
worked for two weeks under Ms. Dusseault’s supervision; she could obtain
assistance from her fellow workers; and she had to have all the documents she
prepared checked. The adjudicator mentioned that Ms. Evoy was justified in
denying the applicant’s request for a training course since at that time it had
already been established that she could not meet the conditions of employment.
Finally, the adjudicator said that the applicant was informed by the letter of
January 23, 2006 of the dismissal that might result if she did not meet
her objectives by February 15,
2006.
ISSUES
[15]
The issue
is whether in ruling on the fairness of the dismissal the adjudicator erred in
concluding that this was a valid dismissal for incompetence, since the
respondent had complied with the requirements for getting rid of its employee.
In particular, the Court must examine whether the adjudicator erred in failing
to consider whether the employer had made every reasonable effort to find the
applicant alternative employment within its operation.
ANALYSIS
(1) What is applicable
standard of review?
[16]
The
respondent submitted two cases to indicate that the adjudicator’s decision
should be treated by this Court with great deference. It argued that in
alleging that the adjudicator had a duty to analyse the efforts made by the
employer to find her alternative employment, the applicant was in fact seeking
a review of the remedy ordered by the adjudicator. Accordingly, the respondent
argued that the courts have consistently held that the less stringent standard
of review should be applied, namely that of the patently unreasonable decision,
and the adjudicator’s decision reviewed only if it is “clearly irrational, that
is to say evidently not in accordance with reason” (Toronto (City) Board of
Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 46).
[17]
It is true
that the Court must exercise great restraint when reviewing points of fact and
inference. Not only does the Code contain a very strict privative clause and
broad powers for adjudicators, it also gives such adjudicators with special
expertise the responsibility of quickly and effectively resolving disputes
resulting from unjust dismissals.
[18]
However,
the judgments cited by the respondent to support application of this standard
of review are not applicable to the case at bar on account of the nature of the
question raised. The question in the case at bar is not so much whether the
adjudicator misjudged the facts leading him to conclude that the dismissal was
for incompetence (and so presumably justified), but rather to determine whether
he applied the correct established tests in deciding that the dismissal was
justified. This is a mixed question of fact and law. In Bitton v. HSBC Bank Canada,
2006 FC 1347, I had to consider the standard of review applicable to such a
question:
[44] As
for the appropriate standard of review to be applied in this case, it should be
noted that the error committed by the adjudicator involves a question of mixed
law and fact. I am not calling into question his findings of fact drawn from
the evidence submitted by the parties. As I pointed out above, these findings
are entitled to considerable deference, which the Court must respect. At no
time were the adjudicator’s findings of fact clearly irrational. For example,
the companies’ complaints brought to the attention of the employer with respect
to Mr. Bitton’s unsatisfactory work and the verbal reprimands he received
from his supervisors are not called into question here.
[45] However,
when the adjudicator bypasses the last stage of the test set out by the Supreme
Court in Toronto Board of Education and jumps to the conclusion that the
dismissal was justified purely on the basis of the fault committed, he
committed an error in applying a legal rule to the facts. Because we are
dealing with a question of mixed law and fact, the degree of deference owed to
the resulting findings is necessarily lesser and entitles this Court to
intervene to the extent that the adjudicator’s decision “is not supported by
any reasons that can stand up to a somewhat probing examination” (Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.
748, at paragraph 56).
[19]
Further,
the hearing in this Court was not in any way concerned with the facts, which
were not disputed by the parties, but with the established tests that should be
considered by an adjudicator in analysing the fairness of a dismissal.
Accordingly, this is clearly a question of the application to facts of tests
developed by the courts, which constitutes a mixed question of fact and law
requiring application of the standard of reasonableness simpliciter.
(2) Did adjudicator err in failing
to consider whether employer had made every reasonable effort to find applicant
alternative employment in its operation?
[20]
The Code
provides the following regarding an adjudicator’s power in matters of dismissal:
|
242.
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been
referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the
complaint was unjust and render a decision thereon; and
(b)
send a copy of the decision with the reasons therefor to each party to the
complaint and to the Minister.
|
242. (3) Sous réserve du paragraphe (3.1), l’arbitre :
a) décide si le congédiement était injuste;
b) transmet une copie de sa décision, motifs à l’appui, à
chaque partie ainsi qu’au ministre.
|
[21]
The Code
provides no definition of what an unjust dismissal is: by not limiting the
scope of the analysis, Parliament thus intended to give the decision-maker
greater flexibility. Consequently, in his assessment of the circumstances of
each case and his search for a solution that will be fair to everyone, the
adjudicator has a free hand. He has great latitude in considering the
particular facts and mitigating circumstances in his analysis. Each case thus
stands on its own merits and the outcome will depend essentially on the facts.
[22]
In his
decision, the adjudicator mentioned that the applicant had been the subject of
an administrative dismissal for incompetence, and this was not disputed by the
parties. At the hearing, counsel for the respondent discussed the differences
existing between an administrative dismissal and a disciplinary dismissal and
emphasized the fact that in the case of an administrative dismissal an
adjudicator does not have the power to substitute his own penalty for that of
the employer. Consequently, he contended that the adjudicator did not have the
power to order the respondent to find the applicant alternative employment,
since the employer had the prerogative of choosing the appropriate penalty.
[23]
The Code
makes no distinction between an administrative and a disciplinary dismissal:
the adjudicator’s only task is to determine whether the employee was unfairly
dismissed. However, a dismissal may be described as administrative or
non-disciplinary when incompetence or problems of performance are at the root
of the dismissal. Without any deliberate act being committed by the employee,
there is nevertheless an inability to carry out the duties associated with the
employment with a minimum level of competence. A disciplinary dismissal clearly
has a punitive connotation, since it is intended to deal severely with
negligent acts or misconduct by an employee.
[24]
The chief
difference between these two types of dismissal appears to lie in the relative
severity of the applicable penalties. In the case of an administrative
dismissal, an employer may dismiss the employee without determining whether in
the circumstances some other penalty would be more appropriate. However, before
coming to this last resort penalty the employer must go through certain stages
in order to establish its good faith and its willingness to work with the
employee and assist him or her to improve performance.
[25]
Adjudicators
analysing the fairness of a dismissal under the Code have developed certain
procedural requirements that must be observed by an employer before it can get rid
of an incompetent employee. These criteria were summarized as follows in the
adjudicator’s decision in Edith Cavell Private Hospital and Hospital
Employees’ Union Loc. 180 (1982), 6 L.A.C. (3d) 229:
(a) The
employer must define the level of job performance required;
(b) The
employer must establish that the standard expected was communicated to the
employee;
(c) The
employer must show it gave reasonable supervision and instruction to the
employee and afforded the employee a reasonable opportunity to meet the
standard;
(d) The
employer must establish an inability on the part of the employee to meet the
requisite standard to an extent that renders her incapable of performing the
job and that reasonable efforts were made to find alternate employment within
the competence of the employee;
(e) The
employer must disclose that reasonable warnings were given to the employee that
a failure to meet the standard could result in dismissal.
[26]
These
procedural requirements framed by Adjudicator Hope were subsequently followed,
although the duty on the employer to find an incompetent employee alternative
employment in its operation is not universally accepted by adjudicators.
[27]
I
do not think these criteria are exhaustive or that they are binding on the
courts in giving effect to section 242 of the Code. Such an approach would be
contrary to the broad latitude given to an adjudicator by Parliament. The only
requirement set by the Code continues to be the fairness of the dismissal, and
consequently the criteria to be considered will depend on the particular facts
of each case.
[28]
At the
conclusion of his assessment of the evidence in the record, the adjudicator
noted that no objection had ever been made against the applicant in her 20
years of service leading up to her promotion. Six months after obtaining
managerial employment despite her lack of qualifications, she was dismissed for
incompetence. The adjudicator noted that her superior Ms. Evoy knew that the
applicant could not perform her duties correctly barely three months after she
began carrying out her new duties, but this was not clearly communicated to
her.
[29]
The
adjudicator concluded that the procedure used by the respondent in getting rid of
the applicant was fair. He considered that the applicant was aware of her
superiors’ expectations and that she was told of her shortcomings both orally
and in writing. The adjudicator also approved the assistance given to the
applicant by her employer to allow her to make corrections and attain her
objectives. He noted that a deadline was set for meeting the objectives in the
letter of January 23, 2006, and that the applicant knew that if this was
not achieved she was at risk of dismissal. Accordingly, the adjudicator
concluded that the dismissal was for incompetence and that the respondent had
complied with the requirements it had to meet in dismissing the applicant.
[30]
At no
time, however, did the adjudicator analyse the dismissal in light of the
applicant’s long history of employment with the Bank and her hitherto
impeccable record. While I am prepared to concede that the adjudicator does not
have to systematically consider the employer’s efforts to reassign the employee
to some other employment, I feel that not doing so in the circumstances at bar
is an error requiring this Court’s intervention. It is worth considering what
message would be given to employees if this were not so. An employer could then
allow an employee who did not have the necessary qualifications to attain
promotion and subsequently dismiss him or her. In these circumstances, it would
be understandable that few employees would take the risk of applying for a
promotion in the certain knowledge that their dismissal could follow if they
were not up to the situation. One might also wonder whether in these
circumstances the employer was not in part responsible for the applicant’s difficulties
and did not make an error of judgment by giving her a promotion for which she
did not have the necessary qualifications.
[31]
This Court
is not required to rule on the fairness of the dismissal: that analysis
concerns only the adjudicator’s jurisdiction. However, I feel that the
adjudicator had at least a duty to consider the fact that the applicant had
been employed by the Bank for some 20 years without any complaint ever being
made against her. I find it hard to conclude that a decision which did not take
that into account was reasonable.
[32]
What is
more, the adjudicator never expressly mentioned that he considered the
applicant’s dismissal to be fair. I feel it is insufficient simply to say that
this was an administrative dismissal for incompetence, nothing more. Bell Canada v. Hallé (1989), 29 C.C.E.L. 213
(at 217-218), involved a dismissal for unsatisfactory work of an employee who
had worked for the employer for seven years. The Federal Court of Appeal per
Pratte J.A. set out the criteria for analysis of whether a dismissal is fair.
The adjudicator must consider the nature, sufficiency and validity of the reasons
for dismissal. Accordingly, the employer must have reasonable grounds for
complaining of the applicant’s performance that justified dismissal. If such
grounds exist, the adjudicator should then determine whether the dismissal
procedure followed by the respondent was fair. Although he considered that the
procedure followed by the respondent was fair, the adjudicator failed to rule
on the reasons given for dismissing the applicant.
[33]
Accordingly,
I would allow this application for judicial review and would refer the matter
back to the same adjudicator. However, the evidence appears to be contradictory
as to whether the applicant wished to obtain another position with the Bank.
While the respondent maintained that offers had been made and refused, the
applicant submitted that at no time had she been offered other employment. This
is a point that should be clarified by the adjudicator in a re-hearing: he will
then determine whether he has sufficient evidence on the point or whether the
parties should be allowed to submit further evidence.
ORDER
THE COURT ORDERS that the application for judicial
review be allowed and the matter referred back to the same adjudicator for
re-hearing.
“Yves
de Montigny”
Certified
true translation
Brian
McCordick, Translator
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