Docket: T-904-14
Citation:
2015 FC 334
Ottawa, Ontario, March 17, 2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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FILO SIGLOY
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Applicant
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and
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DHL EXPRESS
(CANADA), LTD.
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
The applicant seeks to set aside the decision of
adjudicator Joseph B. Rose dismissing the applicant’s complaint of unjust
dismissal made under section 240 of the Canada Labour Code, RSC 1985, c
L-2 (the Code). For the reasons that follow, the application is granted.
II.
Facts
[2]
The applicant, Mr. Filo Sigloy, was employed by
DHL Express (Canada) Ltd. from September 20, 2010 until the date of his
dismissal on October 9, 2012, when he alleges he was unjustly dismissed. The
applicant was first hired into a bargaining unit position, however on May 1,
2012, he was promoted to “Bilingual Key Accounts Specialist”, a non-union
position. Subsequent to his dismissal, the applicant filed a complaint
pursuant to section 240 of the Code.
[3]
The position of Bilingual Key Accounts Specialist
was governed by an employment contract agreed to and signed by the applicant. Section
8 of the employment contract provided that the respondent could terminate the
applicant’s employment at any time:
(8) This agreement and your employment
hereunder may be terminated as follows:
(a) You may terminate this agreement
for any reason upon fourteen (14) days prior notice in writing to the Company.
(b) By the company at any time
without notice:
For Cause in which case your
employment shall terminate immediately upon receipt of written notice setting
out the Cause of termination. “Cause” shall include, but not be limited to, a
material breach of the terms of this Agreement.
(c) The Company may terminate your
employment at any time giving you the greater of two (2) weeks’ notice in
writing or severance requirement, expressed or implied, shall apply. Upon
termination of your employment you will return all DHL property, materials,
reports, keys, cards, etc. that you have in your possession or control to DHL. (emphasis added)
[4]
On October 9, 2012, the respondent advised the
applicant in writing that his employment would cease effective immediately.
The termination letter did not explicitly state that the applicant was being
dismissed without cause; however it does so implicitly as the letter states
that the applicant was to be provided with all severance entitlements required
by the “without cause” term of the contract. Those entitlements were two weeks
of pay in lieu of notice and five days of severance, less required deductions.
[5]
The applicant filed an unjust dismissal
complaint with Human Resources and Skills Development Canada (HRSDC) (now Employment
and Social Development Canada). The complaint alleged that there were no
reasonable grounds to justify the applicant’s dismissal, that the dismissal was
not due to a lack of work or because of a discontinuance of a position and that
any allegation of just cause would be without merit and that just cause had
not, to that date, been alleged.
[6]
In accordance with the process under the Code,
the respondent subsequently received letters from HRSDC requesting that the
respondent provide a “written statement giving the
reasons for dismissal”. A human resources officer with the respondent
wrote to HRSDC outlining the reasons why the applicant’s employment was
terminated. These reasons included: poor performance, attendance and attitude;
multiple complaints from internal and external customers regarding the quality
of the applicant’s work, level of professionalism, timeliness of follow-ups and
a demonstrated inability to sustain the requirements of his position. The
letter did not state that the dismissal was for cause.
[7]
The Minister of Labour appointed an adjudicator
to hear the applicant’s complaint and a hearing date was set for October 17,
2013. At the outset of the hearing the respondent raised a preliminary
objection regarding whether the Adjudicator had jurisdiction to hear the
applicant’s complaint. Specifically, the respondent argued that as the
dismissal was without cause in accordance with a contract of employment, the
Adjudicator had no jurisdiction to conduct a hearing on the merits of the
unjust dismissal Complaint. The parties provided the Adjudicator with written
submissions with respect to the objection, and the Adjudicator ultimately
concluded on March 20, 2014, that he had no jurisdiction to consider the
applicant’s Complaint.
III.
Decision
[8]
On March 20, 2014, the Adjudicator rendered his
decision, dismissing the applicant’s complaint for want of jurisdiction.
[9]
The Adjudicator identified the main issue before
him as “whether an adjudicator has jurisdiction where
an employer dismisses an employee without cause in compliance with a valid and
enforceable contract of employment and the Code”.
[10]
The Adjudicator commented on the applicant’s
concern that the without cause dismissal was “false”. The Adjudicator found
that just because an employer has reasons for dismissal does not mean it has to
automatically resort to the “for cause” option under the contract, should there
be such a clause. Further, the Adjudicator observed that the concern regarding
false without cause terminations imposed an obligation on him to “carefully scrutinize contracts of employment” . He
also noted that “just as each case will be decided on
its own particular facts, each contract of employment will possess its own
particular characteristics”.
[11]
The Adjudicator found that there was no
indication of impropriety surrounding the applicant’s dismissal. He found that
there was a “consensual contract of employment that
provides the statutory entitlements under the Code”. As the applicant
had not made any other allegations of unjustness, the Adjudicator concluded
that where “consensual agreements satisfy the
aforementioned requirements, they do not conflict with the contracting out
provision in s. 168 of the Code”.
[12]
The Adjudicator also considered the applicant’s
argument that the respondent could not “resile from the
written reasons for dismissal” provided to HRSDC. The Adjudicator found
that DHL’s response to HRSDC’s request for reasons for dismissal did not mean
it was asserting cause. The Adjudicator concluded by noting that although the
DHL provided reasons for dismissal, it was not “alleging
they amounted to cause” as “[i]ndeed, the
employer has maintained from the outset it dismissed the [applicant] on a
without cause basis pursuant to a valid and enforceable contract of employment”.
[13]
Finally, the Adjudicator stated there was no
foundation for the applicant’s claim of settlement privilege with respect to
the termination letter. The letter was therefore admissible.
[14]
The Adjudicator also concluded that the
applicant “entered into a valid and enforceable contract of employment, the
terms of which were in compliance with the Code. Further, the [applicant’s]
initial complaint does not allege the dismissal involved discrimination,
reprisal or bad faith”. As such, he was without jurisdiction and granted the
respondent’s preliminary objection.
IV.
Issues
[15]
In light of developments in the jurisprudence
since the hearing of this application, the single question framed before me is
whether it is permissible to determine the merits of a complaint under section
240 of the Code in the absence of an evidentiary hearing. The standard
of review of this question is correctness.
V.
Analysis
[16]
The jurisdictional issue raised before the
Adjudicator had been previously considered by Justice James O’Reilly in Atomic
Energy of Canada Limited v Wilson, 2013 FC 733. In Wilson, Justice
O’Reilly found that the “fact that an employer has paid
an employee severance pay does not preclude an adjudicator from granting relief
where the adjudicator concludes that the dismissal was unjust”. Therefore,
in order to determine if further relief is warranted there must be jurisdiction
to conduct a hearing on the merits. Justice O’Reilly’s decision was appealed,
and the matter was under reserve at the time of this judicial review hearing.
[17]
On January 22, 2015, the Court of Appeal
dismissed the appeal in Wilson v Atomic Energy of Canada Limited, 2015
FCA 17. This Court invited the parties to make further submissions in response
to that decision.
[18]
The Court of Appeal upheld Justice O’Reilly’s
decision. Stratas JA, writing for the Court wrote at paragraphs 93-94:
Finally, I wish to address one final
submission made by the appellant. The appellant warns of severe implications
associated with AECL’s position. He raises the spectre of employers being able
to dismiss employees without cause, paying them an amount of money the
employers think is adequate, leaving employees with no meaningful right of
recourse under section 240 of the Code.
That is simply not so.
It will always be for the adjudicator to assess the circumstances and determine
whether the dismissal, whether or not for cause, was unjust.
[19]
The significance of the Court of Appeal decision
is that an adjudicator errs in assuming that a dismissal of an employment
without cause and with payment of the statutory or agreed upon amounts is
necessarily just: Wilson at para 97. It remains for the adjudicator to
still consider the common law principles governing the law of dismissal,
including duress, and to inquire into whether the compensation complied with
the requirements of the Code or the employment contract: see Wilson
at para 98.
[20]
Curiously, but perhaps predictably, both parties
contend that the decision of the Court of Appeal supports their respective
position.
A.
The issue
[21]
The Court of Appeal gave clear guidance that adjudicators
have jurisdiction to hear complaints in the face of objections rooted in
allegations that the dismissal was without cause, or that the minimum
requirements of the Code or employment contract had been met. This does
not necessarily engage a full evidentiary hearing on the merits; rather it may
be disposed on a summary basis.
[22]
The circumstances in Wilson are directly
analogous to those before the Court. Here, the Adjudicator determined the
payment of the minimum compensation required by the Code, or those of
the contract, if greater, ousted his jurisdiction. What is clear from the
Court of Appeal decision is that the question whether a dismissal is unjust is
an evidentiary matter.
[23]
In sum, the Adjudicator was required to hold a
hearing. The form, shape and duration of that hearing is, although framed by
legal principle, within the discretion of the Adjudicator. The crux of the
Court of Appeal decision lies, in my view, in paragraph 97, which instructs
that it is incorrect to assume that the dismissal of an employee dismissed
without cause and who has been paid the required compensation is automatically
just. There must be an evidentiary inquiry, whether cursory or extensive, into
the circumstances of the dismissal.
[24]
To conclude, “[i]t will
always be for the adjudicator to assess the circumstances and determine whether
the dismissal, whether or not for cause, was unjust”: Wilson at
para 94. This result is consistent with National Bank of Canada v Canada
(Minister of Labour), [1998] FCJ No 872 at para 4 which held that section
168 of the Code protects the right of an employee to complain of an
unjust dismissal even in the face of a settlement or employment contract.
B.
Application of the Wilson decision
[25]
The respondent contends that the Adjudicator did
precisely that which the Court of Appeal in Wilson instructs. He held a
summary proceeding in which he determined that there was a valid employment
contract allowing a dismissal without cause. The respondent also contends that
the hearing conducted, whether viewed as jurisdictional or evidentiary, covered
the ground that an Adjudicator is, post-Wilson, required to canvass. It
notes that the Adjudicator found that cause was not alleged in the termination
letter and the reasons it gave to HRDSC did not amount to cause. The
Adjudicator then considered the fact that the termination occurred pursuant to
a valid employment contract, the statutory requirements for severance and
termination pay were met and there were no allegations of unfairness, reprisal
or discrimination. The Adjudicator concluded that there “was no acceptable or defensible basis: upon which he could
conclude that the dismissal was unjust”.
[26]
Although there is considerable merit to the respondent’s
submission, I cannot agree. All of these conclusions may be well founded, but
judicial review and procedural fairness is concerned with the process of
decision making, not its outcome. Wilson directs that there be an
evidentiary hearing, something to which neither the Adjudicator nor the parties
directed their minds. The issue before the Adjudicator was, on consent, a
preliminary legal determination.
[27]
While it is true that some evidence was put
before the Adjudicator to frame the pure legal issue, the Court cannot assume
that was all of the evidence that the parties would bring forward, or that it
came forward in the form and manner of counsel’s choice, subject, of course, to
the discretion of the Adjudicator to manage the process before him or her.
[28]
Even if the respondent is correct and the
proceedings before the Adjudicator conformed to the inquiry mandated by Wilson,
that, again, is a result, whereas procedural fairness is directed to the
process by which a decision is reached. Procedural fairness requires, at
minimum, that the applicant have the opportunity of making submissions as to
the form and content of the hearing that the adjudicator is required, in light
of the Court of Appeal’s decision, to hold.
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