Date:
20130424
Docket:
T-1309-12
Citation:
2013 FC 410
Toronto, Ontario,
April 24, 2013
PRESENT: The
Honourable Mr. Justice Campbell
BETWEEN:
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DEBORAH GUYDOS
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Applicant
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and
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CANADA POST CORPORATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application concerns the jurisdiction of an Adjudicator acting under
the Canada Labour Code, RSC 1985, c L-2 to address Ms. Guydos’
complaint of wrongful dismissal. In the decision under review the Adjudicator
declined jurisdiction. For the reasons that follow, in my opinion, the
Adjudicator was correct in doing so.
[2]
The
complaint arose from Ms. Guydos’ dismissal from her employment with Canada
Post. In order for Ms. Guydos to obtain relief from the Adjudicator it was
necessary for her to establish that, on the date of the dismissal, her
employment was not governed by a collective agreement.
[3]
With
respect to the date of dismissal, the following actions of Canada Post are key
to the jurisdiction issue. On February 25, 2010, Ms. Guydos received a letter
from Canada Post stating that she had failed to provide updated medical
information to substantiate her ongoing absence from work. Canada Post took the
position that, under the terms of the collective agreement, the letter served
as a "Notice of Release for Incapacity" (Notice) and her release from
employment would become effective on April 2, 2010. However, Ms. Guydos’ union
filed a grievance with respect to the Notice that had the effect of delaying
Ms. Guydos’ release pending resolution of the grievance. On June 22, 2011, Ms.
Guydos received a notice from Canada Post advising her that her maximum period
of sick leave was coming to an end.
[4]
On
March 28, 2012, the union withdrew the grievance with respect to the Notice
with the result that Canada Post argued before the Adjudicator that Ms. Guydos’
termination had become effective on April 2, 2010, and since her employment was
under a collective agreement at that time, the Adjudicator had no jurisdiction
to hear her complaint of wrongful dismissal. Nevertheless, Ms. Guydos took the
position that the June 22, 2011 letter constituted dismissal and that she was
not under a collective agreement because a strike and lock-out existed at that
time. On this basis she argued that she was able to maintain an application for
wrongful dismissal under the Canada Labour Code.
[5]
With
respect to the legal operation of the Notice, the Adjudicator accepted Canada
Post’s argument. With respect to Ms. Guydos’ argument about the importance of
the June 22, 2011 letter, the Adjudicator found that it had no employment
importance other than to give her notice of a fact. In any event Canada Post argued
that, as a matter of law, subsequent legislation retroactively extending the
previous collective agreement placed Ms. Guydos under a collective agreement in
June 2011. The passage from the decision which clearly addresses the arguments
is as follows:
I conclude that the dismissal date, pursuant to the
Notice of Release for Incapacity which was to take effect April 2, 2010, is the
operative date. Even in the alternative, if the dismissal is treated as having
occurred in April, 2012, as a consequence of the union's withdrawal of her grievance
on March 28, 2012, my ruling would still be that I have no jurisdiction to deal
with Ms. Guydos' Complaint of unjust dismissal by reason of the operation of
Section 240(1)(b) of Division XIV of the Canada Labour Code. On either of
those applicable dates, Ms. Guydos was "a member of a group of employees
subject to a collective agreement” (Decision, para 29).
[6]
I
find that the Adjudicator’s determination that, in fact, Ms. Guydos’ release
occurred on April 2, 2010 is reasonable. I also find that, in law, because a
collective agreement was in effect on that date, the Adjudicator was correct in
the jurisdictional finding made: no jurisdiction existed to address the merits
of Ms. Guydos’ complaint.
ORDER
THIS
COURT ORDERS that:
1. The
present Application is dismissed.
2. I
make no order as to costs.
“Douglas R. Campbell”
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