Docket: T-983-17
Citation: 2018 FC 214
[ENGLISH TRANSLATION]
Ottawa, Ontario, February 23, 2018
PRESENT: The Honourable Madam Justice Roussel
| BETWEEN:
|
| CANADA POST CORPORATION
|
| Applicant
|
| and
|
| NICOLAS MAINVILLE
|
| Respondent
|
JUDGMENT AND REASONS
I. Introduction
[1] The Canada Post Corporation [CPC] seeks judicial review of an adjudication award by adjudicator Renaud Paquet [the adjudicator] on June 5, 2017, which allows the unjust dismissal complaint filed by Nicolas Mainville under subsection 240(1) of the Canada Labour Code, RSC 1985, c. L-2 [Code].
[2] For the following reasons, the application for judicial review is dismissed.
II. Background
[3] Mr. Mainville has been employed by the CPC since 1998. In January 2015, he was assigned to the position of regional manager for implementing a project to replace home delivery in certain neighbourhoods with delivery to community mailboxes.
[4] On March 16, 2016, CPC employees reported to the supervisors that Mr. Mainville had dropped off two (2) packages for the United States, for which the sender’s address was that of Mr. Mainville’s workplace and which was shipped using the CPC shipping tool under a corporate code. The CPC’s internal investigation revealed that Mr. Mainville made thirty-four (34) personal, unauthorized and unpaid shipments by using the corporate code between 2015 and 2016, for a value of approximately seventeen hundred dollars ($1,700). During a meeting with the investigators the following day, Mr. Mainville admitted making these personal shipments, but affirmed being unaware that he was unable to freely use the postal services for personal reasons. He signed a statement to that end that same day.
[5] On March 17, 2016, the CPC terminated Mr. Mainville’s employment by letter, citing the irreparable breach of trust inherent to his employment relationship.
[6] On May 9, 2016, Mr. Mainville filed an unjust dismissal complaint under subsection 240(1) of the Code. The complaint hearing took place over three (3) days. During the hearing, the CPC called forth four (4) witnesses: Mr. Mainville’s immediate superior, the manager of security and investigations, the postal inspector and the general manager, John Polak. Mr. Mainville also testified, but did not call any other witnesses.
[7] On June 5, 2017, the adjudicator allowed Mr. Mainville’s complaint. He set aside the dismissal to replace it with a one-year suspension and ordered Mr. Mainville’s reinstatement in a position similar to the one he held before his dismissal, as well as the payment of his wages and benefits that would have been paid if he were still employed, retroactive to March 16, 2017. The adjudicator also ordered Mr. Mainville to reimburse the sum of seventeen hundred dollars ($1,700) for the personal shipments costs that he made at the CPC's expense.
[8] The CPC disputes that decision. It believes that the adjudicator’s decision was unreasonable both regarding the unfairness of the dismissal and the corrective measure imposing the reinstatement. They also criticized the adjudicator of not acknowledging that the employment relationship of trust was broken by Mr. Mainville’s actions.
III. Analysis
A. Standard of review
[9] The parties agree the standard for review applicable to an award by a labour adjudicator responsible for applying the provisions regarding the unjust dismissal set out in the Code is that of reasonableness (Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 at paras 15–16; National Bank of Canada v. Lavoie, 2014 FCA 268 at para 13 [Lavoie]; Payne v. Bank of Montreal, 2013 FCA 33 at paras 32 and 35 [Payne]).
[10] When the reasonableness standard applies, the Court’s role is to determine whether the decision falls within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law”
. As long as “the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility”
, it is not for this Court to substitute the issue for a preferable outcome (Dunsmuir v. New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para 59; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14–18 [Newfoundland Nurses]).
B. Unjust dismissal
[11] The CPC maintains that the adjudicator’s decision is unreasonable on the grounds that his findings are contradictory and that his analysis fails to explain how he could determine that the employment relationship of trust was not broken by Mr. Mainville’s actions.
[12] The Court cannot agree with the applicant’s position.
[13] In McKinley v. BC Tel, 2001 SCC 38 [McKinley], the Supreme Court of Canada teaches that it is not all dishonest behaviours that justify an employee’s dismissal and that “whether an employer is justified in dismissing an employee on the grounds of dishonesty is a question that requires an assessment of the context of the alleged misconduct. More specifically, the test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship.”
According to the Court, this test is stated in several ways. For example, it mentions that a cause for dismissal exists where the dishonesty: (1) violates an essential condition of the employment contract; (2) breaches the faith inherent to the work relationship; or (3) is fundamentally or directly inconsistent with the employee’s obligations to his or her employer (McKinley at para 48). These examples are taken by the Federal Court of Appeal in Lavoie at paras 15 and 16 of the decision.
[14] The Supreme Court of Canada emphasizes that this contextual approach requires considering the nature and circumstances of the misconduct. In certain cases, it can lead to a dismissal when theft, misappropriation or serious fraud is found (McKinley at para 51). Further, less serious types of misconduct can lead to lesser sanctions. In this regard, the Court gives the example of the employer who docks an employee’s pay for the loss incurred by a minor misuse of company property (McKinley at para 52). According to the Court, an effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed in order to respect the principle of the proportionality that underlies the contextual approach (McKinley at para 53). Of the view that each case must be considered on its own particular facts and circumstances, the Court therefore dismisses the jurisprudence whereby all forms of dishonesty constitute a just cause for dismissal, no matter the factors and circumstances of the behaviour, the nature and seriousness of the dishonesty, or even the question of whether there was a breach in the essential conditions of the employment relationship (McKinley at para 57).
[15] After reviewing the decision in its entirety, the Court believes that the adjudicator applied the appropriate legal framework to determine if Mr. Mainville’s dismissal was justified. He considered the nature, circumstances and the seriousness of the misconduct, as well as how much it influenced the employment relationship of trust, all while keeping in mind the objective to ensure a proportional balance between the seriousness of the misconduct and the sanction imposed upon Mr. Mainville.
[16] The adjudicator first finds that Mr. Mainville did not intend to defraud his employer. In light of the evidence provided by the parties, he believes the version presented by Mr. Mainville to be credible, for instance when he affirmed having openly used his employer’s postal services believing that he had the right to do so and that it was a privilege granted to him as an employee. The adjudicator emphasizes that Mr. Mainville was very coherent in this regard by first admitting the alleged personal shipments, by informing them that he always acted this way and by detailing how he went about openly making the shipments before the electronic tool existed.
[17] The adjudicator affirms that not only did Mr. Mainville seem to be a man of great integrity who was fully devoted to his employer, but the CPC also did not submit any evidence that could lead it to doubt Mr. Mainville’s explanation. The adjudicator gives little weight to Mr. Polak’s testimony that Mr. Mainville is allegedly [translation] “entirely dishonest”
, in particular because he made the decision to dismiss Mr. Mainville simply on the basis of the investigation report, without meeting with him and without trying to assess his motivation and sincerity. The adjudicator emphasizes that the employer should have verified the truth of Mr. Mainville’s statements that he acted openly, that he happened to ask his assistant or his employer’s assistant to make personal shipments in his former jobs within the CPC and that before the electronic shipping tool, he completed the “shipping manifest”
by keeping a copy and submitting one to his employer.
[18] Finding that Mr. Mainville’s conduct was not fraudulent, the adjudicator nevertheless believes that Mr. Mainville is not blameless and that his actions justify the imposition of severe disciplinary measures due to their blameworthiness. He finds that Mr. Mainville’s actions show a lack of judgment and a nonchalant behaviour, which deviates from that of a reasonable individual.
[19] The CPC argues that the adjudicator’s findings are contradictory since Mr. Mainville’s belief cannot be credible if the adjudicator also deems that a reasonable individual could not have the same belief. With respect, the Court does not necessarily see a contradiction. An employee who has honesty and integrity can also show negligence and merit a sanction other than dismissal (Payne at para 82).
[20] Acknowledging the seriousness of the misconduct committed by Mr. Mainville, the adjudicator then considers if this is reconcilable with sustaining the employment relationship of trust. He decides that Mr. Mainville’s misconduct is insufficient to justify his dismissal. To come to this finding, he specifically considers the amount of which the CPC was deprived, Mr. Mainville’s lack of fraudulent intent, the CPC’s failure to wonder about the sincerity of Mr. Mainville’s explanations, the lack of disciplinary interview to discuss the results of the investigation, the management position that Mr. Mainville held within the CPC, his long years of service and his superior performance when carrying out his duties. By taking into account all these factors, the adjudicator rather believes that a one-year suspension is justified.
[21] The CPC maintains that the adjudicator’s reasons fail to explain how he could determine that the relationship of trust was not broken and in this regard, it relies on Lavoie.
[22] It is appropriate to distinguish Lavoie from this matter. In Lavoie, the Federal Court of Appeal specifically criticizes the adjudicator for having neither tried to assess the seriousness of the actions in the specific context before him nor to have tried to assess the consequences of these actions on the employment relationship in order to determine whether the relationship of trust had been irrevocably broken (Lavoie at para 24). The Federal Court of Appeal also states that the adjudicator’s reasons do not support his finding that the relationship of trust was not broken (Lavoie at para 30).
[23] In this case, the adjudicator’s reasons show on the contrary an analysis of each of the elements stated in McKinley. Moreover, read as a whole, they allow us to understand how the adjudicator could determine that the employment relationship of trust was not irrevocably broken. The adjudicator gives little weight to Mr. Polak’s testimony that he considered Mr. Mainville’s explanation “completely dishonest”
. In doing so, the very foundation upon which Mr. Polak relies to find that the relationship of trust was broken is called into question.
[24] It is well established that it is unnecessary for the adjudicator’s reasons to be perfect or comprehensive. It is enough that the reasons adequately support the basis of the decision and that they allow to determine whether the finding falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Newfoundland Nurses at para 15, 18; Dunsmuir at para 47). Considering the standard of review applicable in this case, the deference to be given regarding the adjudicator’s findings on the credibility of the testimonies and the adjudicator’s expertise regarding unjust dismissal, the Court cannot rule that the adjudicator’s finding does not fall within the range of possible, acceptable outcomes. It is not up to this Court to reweigh the evidence to substitute itself to the adjudicator, even if the Court could have come another conclusion.
C. The reinstatement
[25] The CPC alternatively suggests that the corrective measure imposing Mr. Mainville’s reinstatement is unreasonable since, first of all, it uses the wrong legal test and second, it ignores the [translation] “profoundly crumbled”
relationship of trust between the CPC and Mr. Mainville.
[26] The CPC affirms that the adjudicator committed a mistake by asking whether the reinstatement is “impossible”
to realize, rather than thoughtfully or judiciously consider the seven (7) factors stated at paragraph 11 in Bank of Montreal v. Sherman, 2012 FC 1513 and at paragraph 88 of Payne, including those concerning the deterioration of personal relationships between Mr. Mainville, management and other employees, as well as the disappearance of the relationship of trust with a higher ranking employee. The CPC also criticizes the adjudicator for justifying his analysis with observations of a speculative nature according to which he finds that in the future, Mr. Mainville will be a trained, productive and doubly motivated employee. The adjudicator should have instead assessed whether the CPC could one day trust Mr. Mainville again.
[27] Moreover, the CPC argues that the adjudicator unreasonably disregarded the breakdown of the relationship of trust. Maintaining the employment relationship of trust is crucial in the labour and employment law context and therefore constitutes a test that is of central importance when it comes to the adjudicator deciding whether reinstatement is an appropriate corrective measure. The CPC criticizes the adjudicator for not giving any weight to Mr. Polak’s testimony when he shared his serious concerns that reinstatement would not be an appropriate corrective measure, given the circumstances and the irreparable breach of the employment relationship of trust. Yet, the adjudicator reportedly put the emphasis himself on the blameworthiness of Mr. Mainville’s actions, his lack of judgment and his nonchalant behaviour. According to the CPC, the adjudicator’s reasons regarding Mr. Mainville’s reinstatement are hard to justify in light of the record and applicable law.
[28] The Court is not persuaded by the CPC’s arguments.
[29] It is well established that the adjudicator has a broad discretion to allow the remedies set out in subsection 242(4) of the Code, including compensation and reinstatement (Transport Réal Ménard inc. v. Ménard, 2015 FC 616 at paras 38 and 39; Payne at para 87). The relevant factors for deciding whether reinstatement is appropriate overlaps with the contextual factors to consider in determining whether a dismissal is unjust. This includes assessing the prospective employment relationship of trust (Payne at para 88). This assessment must also be done objectively since it goes without saying that the employer who dismisses an employee will necessarily claim that the relationship of trust is irreparably broken.
[30] Contrary to the CPC’s claims, the adjudicator does not apply the impossibility test to decide the reinstatement’s appropriateness. Read as a whole, the reasons indicate that the adjudicator’s decision is based on a variety of factors, including that of the viability of the employment relationship of trust. The adjudicator considers the honesty shown by Mr. Mainville when he met with the investigators, his integrity, his long years of service, his clean disciplinary record, his positive performance reviews, the fact that Mr. Mainville reportedly paid heavily for his error in judgment with the one-year suspension with pay, the impact of the suspension on Mr. Mainville’s reputation when he returns to work, and the possibility of Mr. Mainville’s reinstatement in the position and duties he held at the time of his dismissal.
[31] The adjudicator also considers Mr. Polak’s testimony that the relationship of trust with Mr. Mainville was broken, that it is important for the employer to be consistent in the disciplinary measures taken against unionized employees and executives, that it is difficult to have him manage employees again and that it is difficult to reinstate him, because management would always question his honesty, ethics and his capacity to make good choices. However, the adjudicator gives this little weight, considering that he dismissed the premise on which Mr. Polak’s belief is founded, i.e. the dishonesty of Mr. Mainville’s explanation. As the trier of fact, not only does the adjudicator have no obligation to accept the employer’s affirmation, but it was also reasonable for him to find that the relationship of trust was not irreparably broken, considering that Mr. Polak never met with Mr. Mainville before finding that he acted dishonestly and that the employment relationship had to be terminated. It is in this context that the adjudicator mentions that the reinstatement does not seem impossible to him at all. It is not because the adjudicator uses the word “impossible”
that we must necessarily find that he incorrectly applied the applicable legal framework. The Court repeats that it is not up to it to reweigh the evidence submitted by the witnesses.
[32] The CPC also criticizes the adjudicator for justifying his analysis with observations of a speculative nature when he affirms that in the future, Mr. Mainville will be a trained, productive and doubly motivated employee. With respect, the Court is of the view that there is no speculation. In considering the factors in support of the reinstatement, the adjudicator accounts for the fact that Mr. Mainville is an experienced employee whose performance reviews have always been positive. Once again, the adjudicator’s comments must be considered in their context.
[33] It is well established that the reviewing court must consider the tribunal’s decision as a whole, in the context of the underlying record, to determine whether it was reasonable (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Newfoundland Nurses at para 18). The CPC’s disagreement with how the adjudicator considered the evidence and determined the issues does not make the decision unreasonable.
[34] In light of the foregoing, the Court is of the view that the adjudicator’s decision meets the requirements of justification, intelligibility and transparency, and that the finding fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir at para 47).
[35] For all these reasons, the application for judicial review is dismissed with costs in the amount of $3,000 in favour of Mr. Mainville.
Email this Content