Date: 20070615
Dockets: A-471-06
A-472-06
Citation: 2007 FCA 238
CORAM: RICHARD
C.J.
LÉTOURNEAU
J.A.
NADON
J.A
BETWEEN:
GILLES BÉGIN
Appellant
and
RADIO BASSE-VILLE (CKIA FM)
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The
appellant filed two appeals (A-471-06 and A-472-06) of two decisions by
Mr. Justice Beaudry of the Federal Court (judge) in dockets T-235-06
and T-275-06.
[2]
Pursuant
to an order by our colleague, Mr. Justice Décary, docket A-471-06 was
designated as the lead file, and both appeals were heard together. A copy of
these reasons in docket A-471-06 will be filed in docket A-472-06 in support of
the formal judgment which will be made in that docket.
[3]
The
appellant represented himself in Federal Court on the applications for judicial
review and on the appeal before us. At the hearing, we explained to him the judge’s
role on the applications for judicial review challenging the decision of the
adjudicator appointed under section 242 of the Canada Labour Code,
R.S.C. 1985, c. L-2 (Code). We also clarified the limits of our powers of
intervention on an appeal.
The proceedings in Federal Court
[4]
In his
application for judicial review, the appellant disputed an adjudicator’s order
that was favourable to him and contained the following findings against the
respondent:
ORDERS the
employer to pay as severance pay the equivalent of two months’ salary, less the
sums collected by the complainant from unemployment insurance and any other
deductions normally made from the salary, effective March 7, 2004;
ORDERS the
employer to pay the sum of $490.00 representing the paid holidays owing to the
complainant, i.e. seven days during the Christmas period 2003;
THE WHOLE WITH INTEREST AT THE LEGAL RATE EFFECTIVE MARCH 7, 2004;
[5]
The
respondent also brought an application for judicial review disputing the
adjudicator’s order requiring it to pay severance pay and an amount for
statutory holidays.
The Federal Court decision
[6]
At the
outset, I must say that the adjudicator’s decision that the judge had to review
was not very clear.
[7]
The judge
understood from that decision that the adjudicator had determined that the
appellant was neither wrongfully nor constructively dismissed, but that he
resigned from his employment.
[8]
In fact,
the appellant resigned on February 20, 2004, as acknowledged by both the
adjudicator and the judge: see paragraph 49 of the adjudicator’s decision and
paragraph 15 of the judge’s decision.
[9]
Furthermore,
the adjudicator acknowledged that the respondent, which was experiencing
serious financial difficulties, was justified, in the exercise of its
management rights, in carrying out an administrative reorganization made
necessary by its financial situation. In his view, the administrative
restructuring was not humiliating or degrading as the appellant alleged in a
document described by the adjudicator as “very emotional”.
[10]
Last, the
adjudicator concluded that there was nothing in the two- or three-week period
at issue that amounted to harassment or constructive dismissal. Paragraphs 109
to 112 of the decision
containing these findings are reproduced below:
[TRANSLATION]
[109]
Considering that his return to work was quite recent, i.e., December 2, he
completed or was in the process of completing close to three to four thousand
dollars in sales, and if we assume that he was a bit out of practice, this
situation could only improve and is difficult to reconcile with the statement
that the goal of $56,000 was completely unreachable. Furthermore, the document
that was filed as E-45 contained many statements that were not necessarily
supported by the testimony and must be read with caution;
[110] This
very emotional self-laudatory document incorporates in a general way the
entire 2003 conflict with the facts of the last three weeks of 2003 and
alleges that the situation continued;
I cannot
agree with the complainant on this point;
[111]
Considering the improvement in his work in the first two and a half weeks in
December 2003, I believe that E-27 constituted a reorganization under his
employment contract that was not humiliating or degrading and did not exceed
the respondent’s management rights; considering the administrative
reorganization that had taken place during the complainant’s absence;
considering the report done in July 2003 on the need to refocus the
respondent’s sales; considering also that the complainant adjusted immediately
to this duty that had been previously part of his work, but more emphasis was
put on his sales for the balance of his employment; in my view, the complainant
should have continued working to see whether his suspicions would prove to be
true regarding the provision of equipment and various types of tools that would
facilitate the achievement of his goals and to confront his employer, if
necessary, if those goals were not reached because of the employer’s lack of
co-operation;
[112] There
is nothing in the two- or three-week period to support the allegation of
harassment or constructive dismissal:
[Emphasis
added]
[11]
These are
the findings that the adjudicator wrote in the following conclusion in support
of his decision:
5. DECISION
In light of
these considerations, it is appropriate to dispose of this grievance as
follows:
WHEREAS the employer
modified the complainant’s duties;
WHEREAS this case
involves the exercise of the employer’s management rights;
WHEREAS, despite
these modifications at his place of employment, the complainant functioned in
an acceptable manner during the two or three weeks following his return to work
in December 2003;
WHEREAS these
modifications were a result of administrative changes caused by financial
difficulties that the business experienced between May 2003 and the
complainant’s return in December 2003;
WHEREAS the
modifications in the complainant’s conditions of work are within the same
sphere of activity, are permitted and tolerable, and the complainant was not
justified in leaving his employment in February 2004 on the pretext of
constructive dismissal;
WHEREAS the
complainant’s behaviour between his return to work and his departure de
facto demonstrates a negative attitude fuelled mainly by the desire to
rekindle the dispute of spring 2003;
WHEREAS, apart from
all these facts and in light of the doctrine and the jurisprudence, the
complainant may not want to perform these new duties although they fall under
the exercise of management rights and he may be justified in leaving his
employment;
WHEREAS however, he
should be given a notice of dismissal;
[12]
Despite
these conclusions, the adjudicator allowed the appellant’s complaint in part
and, as already mentioned, granted him severance pay and holiday pay.
[13]
On this
aspect of the adjudicator’s decision, the judge found that there was an
inconsistency in determining that there had been a voluntary resignation and,
in the same breath, granting
severance pay since, under subsection 242(4) of the Code,
compensation may only be ordered where a person has been unjustly dismissed:
|
242.
…
(4)
Where an adjudicator decides pursuant to subsection (3) that a person has
been unjustly dismissed, the adjudicator may, by order, require the employer
who dismissed the person to
(a)
pay the person compensation not exceeding the amount of money that is
equivalent to the remuneration that would, but for the dismissal, have been
paid by the employer to the person;
(b)
reinstate the person in his employ; and
(c)
do any other like thing that it is equitable to require the employer to do in
order to remedy or counteract any consequence of the dismissal.
|
242.
[…]
(4)
S’il décide que le congédiement était injuste, l’arbitre peut, par
ordonnance, enjoindre à l’employeur:
a) de payer au complainant une indemnité
équivalant, au maximum, au salaire qu’il aurait normalement gagné s’il
n’avait pas été congédié;
b) de réintégrer the complainant dans son
emploi;
c) de prendre toute autre mesure qu’il juge équitable
de lui imposer et de nature à contrebalancer les effets du congédiement ou à
y remédier.
|
[14]
Last, the
judge upheld the adjudicator’s decision regarding holiday pay, and the
respondent chose not to appeal this issue.
Analysis of the decision of the Federal
Court judge
[15]
I have
spent some time summarizing the adjudicator’s most significant findings so that
the role of the judge on applications for judicial review can be understood
more readily.
[16]
The judge
was correct in raising the inconsistency in the adjudicator’s decision, which
found that the appellant had resigned but nonetheless allowed, in part, the
appellant’s complaint of unjust dismissal. The judge therefore properly set
aside the order to pay severance pay.
[17]
Despite
the written and oral representations of Mr. Bégin, I am not persuaded that the
judge made an error warranting our intervention. Since he was dealing with
questions of mixed fact and law, except for the interpretation of subsection
242(4) of the Code, his powers of intervention in the adjudicator’s decision
were limited by the strict standard of review applicable in this case. The
judge could not substitute his assessment of the facts and the evidence for
that of the adjudicator. He was quite careful not to do so.
[18]
The
appellant criticizes the judge for not allowing his request for payment for his
accumulated sick days. The adjudicator considered this issue. He referred to
the conditions regarding sick days in the [TRANSLATION]
Agreement
establishing the working conditions for employees of CKIA FM 88,3 (Radio
Basse-Ville):
see appeal book, volume 2, at pages 247 and following.
[19]
Article
16.3 of the agreement states that [TRANSLATION] “sick days that have not been
used during the year of reference are not cumulative and will not at any time
be paid in cash”:
ibid, at page 254. Accordingly, the
adjudicator rejected the appellant’s request on this point. In my view, there
was no basis for the judge to intervene.
[20]
For these
reasons, I would dismiss the appeals in dockets A-471-06 and A-472-06 with one
set of costs.
“Gilles
Létourneau”
“I
concur.
J.
Richard C.J. ”
“I
concur.
M.
Nadon J.A. ”
Certified
true translation
Mary
Jo Egan, LLB
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