Docket: T-1780-13
Citation:
2014 FC 662
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa, Ontario, July 8,
2014
PRESENT: The Honourable Mr. Justice Locke
|
|
|
BETWEEN:
|
|
SAMIR ABANI
|
|
Applicant
|
|
and
|
|
ROGERS COMMUNICATIONS INC.
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of an
adjudicator’s decision dismissing an unjust dismissal complaint by Samir Abani.
[2]
Mr. Abani was informed of the dismissal by his
employer, the respondent Rogers Communications Inc. (Rogers) in a letter dated
April 11, 2011. The employer’s decision was based on a very high rate of
absenteeism over a two-year period, and the employer did not believe that the
situation would improve. The letter dated April 11, 2011, also referred to
several warnings about his absences that had been given to Mr. Abani during
this period.
[3]
Mr. Abani registered a complaint of unjust
dismissal with Human Resources and Skills Development Canada (HRSDC). The
adjudicative tribunal that was appointed, Adjudicator Jean Vézina, found that
it was not unreasonable for Rogers to dismiss Mr. Abani. The adjudicator
referred to Mr. Abani’s multiple absences and accepted the conclusion of
Shepell-fgi (an independent company that manages Rogers’ short-term disability
leave program) that the absences were not attributable to a medical problem.
The adjudicator also referred to a two‑month period when Mr. Abani was outside
Canada even after that leave had been refused. According to the adjudicator,
this trip permanently broke the bond of trust required between employer and
employee.
[4]
Mr. Abani alleges that the adjudicator breached
the rules of natural justice by not considering the relevant evidence that he
submitted. For the reasons that follow, I am dismissing the application for
judicial review.
I.
FACTS
[5]
On April 30, 2007, the applicant was hired by
Rogers in Toronto. In August 2008, the applicant was transferred to Montréal.
[6]
On December 1, 2009, a representative of Rogers
met with Mr. Abani and gave him a warning letter regarding his unjustified
absences during August and September 2009. The letter indicated that Mr. Abani
was absent six times during this period.
[7]
On July 2, 2010, Mr. Abani received a letter
from Shepell-fgi requesting medical information to support Mr. Abani's claim to
be incapable of working. The letter indicated that Shepell-fgi found the
applicant to be eligible for the period from June 27, 2010 to July 3, 2010
(inclusive) and had sent Rogers a notice in that regard.
[8]
On August, 16, 2010, Mr. Abani requested three
months leave without pay. This request was refused. Despite the refusal, on
August 27, 2010, Mr. Abani bought a plane ticket to go to Morocco for two
months.
[9]
On September 6, 2010, Mr. Abani met with a
psychologist who suggested that he take four weeks off to rest. On September 9,
2010, Mr. Abani left for Morocco without informing Rogers even though his leave
request had been refused.
[10]
On September 29, 2010, the processing of Mr.
Abani’s file was suspended because Shepell-fgi decided that it did not have
enough reasons to accept Mr. Abani’s application for disability leave. The
letter requested that Mr. Abani ask his doctor to complete a medical report.
This report was completed on October 8, 2010, during Mr. Abani’s absence.
[11]
On October 18, 2010, Shepell-fgi sent Mr. Abani
a letter indicating that his application for disability leave had been denied.
Mr. Abani was informed that Shepell-fgi had reviewed his application for
short-term disability leave and found that the medical evidence was insufficient
to justify his absence from work as of September 28, 2010. The letter explained
the process for appealing this decision and set out the new medical information
that would have to be sent to Shepell-fgi. This information included the
following:
•
Extent and severity of symptoms based on the
diagnosis;
•
Objective medical data to support the diagnosis
including test results;
•
Prognosis in relation to the diagnosis;
•
Functional limitations that would prevent him
from performing the essential duties of his job or his temporary assignment and
that renders him completely disabled;
•
Treatment plan, accompanied by information about
the results to date;
•
Complete clinical notes written by his doctor,
therapist or other specialists consulted after August 18, 2010.
[12]
On November 7, 2010, Mr. Abani returned from
Morocco. On November 8, 2010, Mr. Abani received a letter from his team
leader, Maxime Nivose, informing him that, according to Rogers, he had not
provided documents justifying his absences. This letter also indicated what
additional information should be provided.
[13]
On November 29, 2010, Mr. Abani sent another
medical report from his doctor to justify his absences. On December 3, 2010,
Shepell-fgi replied and stated that the new medical information was still not
sufficient to justify his absences from work.
[14]
On December 7, 2010, Rogers sent a second
warning letter concerning Mr. Abani’s unjustified absences during July and
August. The letter indicated that Mr. Abani was absent for 6.55 days
during this period.
[15]
A third warning letter was sent to Mr. Abani on
February 16, 2011, regarding his absences during the period from April to
November 2010. The letter indicated that Mr. Abani was absent 86 days
during this period, including 61 days from September to November. The
letter indicates the following:
[Translation]
If we do not see radical improvement over the
next three months, we will have to implement more serious measures that could
go as far as termination of employment.
…
It is crucial that your attendance improve in
the next three months and we ask you to do what is required to improve. If you
do not, you risk termination of your employment.
[16]
Despite these warning letters, Mr. Abani
continued his work absences without medical justification. On March 24, 2011,
Mr. Abani provided another medical report, from a different doctor this time.
On March 29, 2011, Shepell-fgi found again that the evidence did not provide medical
reasons for his absence from work.
[17]
On April 11, 2011, Rogers terminated Mr. Abani’s
employment because he was unable to provide regular attendance at his job.
[18]
On June 23, 2011, Mr. Abani filed a complaint
with HRSDC-Labour Program under section 240 of the Canada Labour Code,
RSC 1985, c L-2, Part III (unjust dismissal). On April 30, 2012, Jean
Vézina was appointed by the Federal Mediation and Conciliation Service as
adjudicator to dispose of the complaint.
[19]
At all
material times in this matter, Mr. Abani was represented
by Ms. Labib Issa. He is now represented by Émilie Le-Huy.
[20]
On May 28, 2012, the adjudicator convened the
parties to a hearing on September 6, 2012. Rogers presented its evidence
through the testimony of two Rogers representatives (Maxime Nivose, client
services team leader, and Michèle Farley, senior manager for client services),
as well as Sandra Martin, supervisor at Shepell-fgi. Counsel for Mr. Abani
cross-examined Mr. Nivose and Ms. Farley. She chose not to cross-examine
Ms. Martin.
[21]
As the presentation of the evidence was not
completed on September 6, 2012, the adjudicator convened the parties for
hearings on May 10 and 27, 2013. On May 10, 2013, counsel for Mr. Abani
called only one witness for her evidence, Mr. Abani.
[22]
On May 27, 2013, the respondent finished cross
examining Mr. Abani. Then, counsel for Mr. Abani announced that her case was
closed. Rogers then had Michèle Farley testify in rebuttal. Counsel for Mr.
Abani cross-examined Ms. Farley.
[23]
On June 17, 2013, the adjudicator convened the
parties to present their respective submissions on August 28, 2013. The
adjudicator granted all the time necessary for counsel for Mr. Abani to make
her oral submissions and allowed her to make written submissions with
supporting authorities.
[24]
The adjudicator rendered his decision on
September 30, 2013.
II.
STANDARD OF REVIEW
[25]
As mentioned above, Mr. Abani alleges that the
adjudicator breached the principles of natural justice by not considering the
relevant evidence before him. The applicable standard of review in that
situation is correctness. But if there were no breach of the principles of
natural justice, and this is actually a challenge to the adjudicator’s assessment
of the evidence, the decision is to be reviewed on a standard of
reasonableness: Dunsmuir v New Brunswick, 2008 SCC 9, at paras 47,
52-56, [2008] 1 SCR 190; Bellefleur v Diffusion Laval Inc, 2012 FC
172, [2012] FCJ No 199.
III.
APPLICANT’S ARGUMENTS
[26]
Mr. Abani contends that the adjudicator failed
to consider the documents that he had submitted in support of his complaint. He
referred to numerous reports sent to Rogers at their request, including the report
from his doctor dated November 29, 2010, as well as his psychologist's report
dated September 6, 2010.
[27]
Mr. Abani submits that he made all the necessary
efforts to prove the validity of his work absences and that Rogers could have
requested an additional assessment, but the adjudicator did not take these
facts into consideration.
[28]
Mr. Abani maintains that the Rogers policy
manual contains a commitment to find another position for an employee who is
temporarily off work, and submits that the adjudicator ignored that clause.
[29]
Last, Mr. Abani referred to Rogers’ duty of
reasonable accommodation as set out by the Supreme Court of Canada in Hydro-Québec v Syndicat des employé-e-s de techniques
professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2008 SCC 43, [2008]
2 SCR 561.
IV.
ANALYSIS AND DECISION
[30]
I am satisfied that there has been no breach of
the principles of natural justice in this case. No evidence was excluded and Mr.
Abani received all the relevant documents had all the usual occasions to
cross-examine the witnesses for Rogers and present his submissions.
[31]
With respect to Mr. Abani's medical reports, the
adjudicator was clearly aware of them. He refers to them at paragraphs
15 and 17 of his decision. The adjudicator clearly agreed with
Shepell-fgi such that the reports submitted by Mr. Abani were not sufficient to
claim that his work absences were caused by one or more medical problems.
[32]
I would note that at paragraph 35 of the adjudicator’s
decision, he indicates that [Translation]
“no evidence was submitted” regarding the issue of work-related stress problems
for Mr. Abani. What I understand from this paragraph is that no sufficient
evidence was submitted. The medical reports were part of the evidence but they
were not sufficient. Mr. Abani’s evidence was based on a single witness,
Mr. Abani himself. There were no witnesses with medical expertise, but it was
based on the medical reports that had been submitted to Rogers.
[33]
In my opinion, the essence of Mr. Abani’s
challenge to the adjudicator’s decision is that the adjudicator did not give
enough weight to his evidence and his arguments. Thus, the adjudicator’s
decision is to be reviewed on a standard of reasonableness. The adjudicator did
not ignore the documents submitted as evidence. He simply did not agree with
Mr. Abani with respect to their importance.
[34]
In my opinion, the adjudicator’s decision, with
respect to Mr. Abani’s absences from work and insufficient evidence of a
medical problem, is reasonable. The adjudicator reviewed Rogers’ evidence in
that regard, including the role of Shepell-fgi. He noted Mr. Abani’s absenteeism
rate from 2009 to 2011, the insufficient medical reports submitted by Mr.
Abani despite the multiple extensions of time given by Shepell-fgi, and the
warning letters. As mentioned above, the letters from Shepell-fgi and Rogers
describe what medical information was missing.
[35]
Regarding Mr. Abani’s argument that Rogers had an
obligation to find him another position given its duty of reasonable accommodation,
I am of the opinion that no such duty arises because Mr. Abani did not successfully
establish a link between his absences and a medical problem. A duty of
reasonable accommodation arises in cases of discrimination (Hydro-Québec,
above at para 9), but no discrimination was established by Mr. Abani. Moreover,
the adjudicator noted the various scheduling options that Rogers offered its
employees and found that that was enough to meet Mr. Abani’s argument about the
duty of reasonable accommodation: paras 5 and 39. I am satisfied that this
finding was reasonable.
[36]
Before concluding, I would like to mention
another argument that was raised at the judicial review hearing. As mentioned
above, the adjudicator upheld Mr. Abani’s dismissal for two reasons. In addition
to Mr. Abani’s work absences, the adjudicator found that Mr. Abani’s trip
outside Canada for two months between September and November 2010, and
Mr. Abani’s attempt to hide this fact, permanently broke the bond of trust
between employer and employee. In Court, Mr. Abani submitted that this finding
by the adjudicator was unreasonable because it was not part of the reasons set
out by Rogers in the dismissal on April 7, 2011, and thus should not have
been considered by the adjudicator. Rogers disagrees. Since I have already
found that the adjudicator’s decision should be upheld, it is not necessary to
look at these arguments in detail or make a finding on this issue.
Email this Content