Nassr v. Tele-Mobile Company (Telus Mobility), 2005 FC 306

Date: 20050301

Docket: T-1453-04

Citation: 2005 FC 306

Between:

SAMEH NASSR

Applicant

And:

TELE-MOBILE COMPANY (TELUS MOBILITY)

Respondent

REASONS FOR ORDER

TEITELBAUM J.

[1]        This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act, to set aside a decision by Nathalie Faucher, acting as an adjudicator appointed pursuant to section 242 of the Canada Labour Code (the Code).

[2]        The impugned decision dismissed the complaint of unjust dismissal filed by Sameh Nassr, the applicant, following the termination of his employment with Telus Mobility, the respondent company.

FACTS

[3]        The applicant began working for the respondent company in April 1999. He held various positions in the company before being promoted to national training specialist in January 2000.

[4]        He still held that position when he was dismissed on September 12, 2002.

Background

[5]        In January 2001, the respondent company completed acquisition of the mobile telephone company Clearnet. Following that transaction, two training teams were working concurrently and it was essential to reorganize the training department so as to merge the teams and make everything efficient.

[6]        To this end, on June 19, 2002, the director of the Continuous Learning Department and the applicant's immediate superior, Susan Antonopoulos, received an e-mail from a Telus manager, David Wells, telling her that the company wished to control expansion of her "G & A" (General & Administrative) section and indicating that "the objective [is] a 10% reduction of headcount".

[7]        To meet these requirements, Ms. Antonopoulos altered the organization of the various Continuous Learning Departments for Canada by creating a National Continuous Learning Branch, to which four departments were attached: National Design Specialist, Delivery East (to which the applicant belonged), Delivery West and National Online.

[8]        Once this new organization was in place, Ms. Antonopoulos found that an additional employee had to be assigned to the National Design Specialist Department.

[9]        However, in view of budgetary limitations, she could not hire a new employee in that department without previously repositioning a current employee, or abolishing a position elsewhere in the National Continuous Learning team.

[10]      After an internal notice of the position was unsuccessfully posted, a decision was made to hire someone from outside. However, in order to do this, it was in Ms. Antonopoulos' opinion necessary to abolish a position in the Delivery East Department, namely the department to which the applicant was assigned.

[11]      After making that determination, Ms. Antonopoulos proceeded to review the files of the Delivery East Department employees for the two preceding years.

[12]      Following that review, she said she found that only one employee, namely the applicant, had received a Coaching Action Plan (CAP); only one employee, namely the applicant, had never reached his quarterly production objectives; and accordingly only one employee, namely the applicant, had had no salary increases since February 2000.

[13]      Taking these factors to be performance indicators, Ms. Antonopoulos concluded that the applicant was the lowest performer in his department and dismissed him.

[14]      It appeared from the evidence that the applicant was not the only department employee at that time who received a CAP in the last two years, and he was also not the only department employee who did not attain his performance objectives in the quarterly reviews.

Sameh Nassr

[15]      The applicant's duties primarily involved teaching various courses to representatives of the respondent company's Customer Service Branch based in Montréal and Toronto.

[16]      Between January 2000 and September 2002, the applicant had had four different immediate supervisors, namely Susan Antonopoulos, Mike Aoki, Gus Mezinis and David Letourneau.

[17]      The evidence indicates that was that the applicant received an initial Coaching Action Plan (CAP), a "First Written Notice", on July 24, 2001, when Gus Mezinis was his immediate superior. This CAP was lifted on September 6, 2001.

[18]      In November 2001, the applicant obtained written authorization from his immediate superior, Mr. Mezinis, to take two weeks' vacation in January 2002. However, he failed to inform the person responsible for scheduling, which resulted in a scheduling conflict, with the applicant on vacation at the same time that he was supposed to have been teaching.

[19]      The applicant told his new superior, David Letourneau, of this scheduling conflict in late December 2001.

[20]      Further, the evidence showed that the applicant received a second CAP, this time a "Final Notice" type, on February 18, 2002. At that time, his immediate superior was Mr. Letourneau.

[21]      As it appears that the imposition of a CAP played an important part in selecting the person to be dismissed, it would be worthwhile to briefly review what these Plans involved.

[22]      At the respondent company, the CAPs are used internally to assess performance, conduct and reliability of employees and are imposed in the event of failures in certain disciplinary requirements. The employee is assessed by his immediate superior, who determines whether a CAP should be imposed after a discussion with him.

[23]      The CAPs complement the quarterly reviews assessing performance used for employees of the respondent company.

[24]      The CAP to which the applicant was subject from February 18 to May 28, 2002, describes several points which he had to improve. Inter alia, the applicant had to pay special attention to the following: "Description of Performance/Behaviour: Accountability; Communication; Trust, Credibility, Professionalism; Breach of Trust; Respect". It is clear that the scheduling conflict episode described above contributed to the issuance of this CAP.

[25 ]      The final heading of the CAP, "Consequences and Next Steps", reads as follows:

These expectations will form a significant part of your Q1 objectives. These will be further determined, developed and weighted in collaboration between you and me. Sam, please be advised that your performance as a whole is under review. As this Coaching Action Plan is being delivered to you as a "Final Notice" any other performance issue(s), different from, or related to, the issue outlined above, will lead us to re-evaluate your employment status with TELE-MOBILE COMPANY (TELUS Mobility).

[26]      On May 28, 2002, Mr. Letourneau informed the applicant that his "Final Written Notice for performance, professionalism and teamwork" established in the CAP of the preceding February was now closed.

[27]      The relevant passages of that letter read as follows:

During the past 90 days you have shown improvement in your performance, professionalism and teamwork with increased collaboration, better time management skills and more responsibility & ownership for your success and role within the team.

Please be aware that going forward, you are not exempt should any other issues arise with regards to your performance. It will once again be under review, however, not qualifying to begin at the first stage of the Performance Management Continuum. Depending on the severity of the issue, it may be escalated to the next level of the Continuum, up to and including the re-evaluation of your employment with TELUS Mobility.

[28]      On July 28, 2002, Mr. Letourneau took 10 points off the applicant's quarterly review, though he was unable to indicate what specific aspect of the applicant's conduct or performance had prompted this calculation.

[29]      Further, another review was made using a new tool, the "Competency Model Assessment", combining self-assessment and assessment by superiors. It appeared from the testimony of various persons that the applicant and his superiors disagreed about this assessment: the applicant claimed that his superiors had underrated him and that his superiors considered that he had been systematically overrated.

[30]      At the same time, three events which occurred subsequent to that quarterly assessment finally terminated the applicant's career with the respondent company.

[31]      First, in the summer of 2002, a project director in the Continuous Learning Department, Yvena Henry, asked for the applicant's help in reviewing a course to be given over an eight-day period. Review of days 7 and 8 in that course was assigned to the applicant, who within a tight deadline had to update the content of the course and redo the template of the documents given to students. It appeared from Ms. Henri's testimony that the applicant only submitted day 8 in time and the work for day 7 was subsequently assigned to one of his fellow employees.

[32]      Second, one of the applicant's fellow employees reported that he had been insulted by a disparaging comment about him by the applicant. In that case, he submitted that he heard him say to one of their fellow employees that he "scratch[ed himself] while working". After that incident, which the applicant denied, a meeting was apparently held between the insulted employee, the applicant and their immediate superior, Mr. Letourneau.

[33]      Third, the applicant worked for a colleague at the Appeal Centre without first obtaining his superior's leave.

[34]      On September 12, 2002, the applicant received a letter from the respondent company telling him that his employment was immediately terminated, as a result of "restructuring within the Continuous Learning Department".

[35]      Suspecting a dismissal disguised as corporate restructuring, the applicant on October 21, 2002, filed a complaint of unjust dismissal with Human Resources Development Canada pursuant to subsection 240(1) of the Code.

[36]      On October 20, 2003, at the first hearing before the adjudicator, the respondent company raised a preliminary objection to the Board's jurisdiction, pursuant to paragraph 242(3.1)(a) of the Code.

[37]      In this connection, the respondent company alleged that the termination of the applicant's employment resulted from the abolition of his position due to necessary restructuring within the business.

[38]      After a lengthy and painstaking analysis of the evidence submitted, the adjudicator determined that the abolition of the applicant's position was not the only cause of the termination of his employment, and that he had been dismissed for mixed reasons of lack of work and disciplinary reasons (on dismissal for mixed reasons, see Roe v. Rogers Cablesystems Ltd., [2000] F.C.J. No. 1457).

[39]      Consequently, on March 15, 2004, the adjudicator found that paragraph 242(3.1)(a) of the Code did not apply in this case and that she had jurisdiction to hear the matter on the merits.

IMPUGNED DECISION

[40]      On July 12, 2004, ruling on the merits of the case, the adjudicator dismissed the complaint, considering that the respondent company had succeeded in establishing just cause for the termination of employment in the context of reorganizing the business.

[41]      Applying the theory of progressive discipline and culminating incident, she concluded that the three events which occurred after the written, formal and final warning given to the applicant (the CAP of February 2002) together constituted a culminating incident justifying the termination of his employment.

ISSUES

[42]      This case raises three issues:

            Did the adjudicator review her preliminary decision; if so, did she exceed her jurisdiction?

            Did the adjudicator err in law by incorrectly applying the theory of the culminating incident?

            Did the adjudicator err in law by requiring the wrong burden of proof from the employer to justify a disciplinary dismissal?

APPLICANT'S ARGUMENTS

[43]      The applicant submitted that the adjudicator made a patently unreasonable error in reviewing her decision dated March 15, 2004. The applicant maintained that the adjudicator had illegally reviewed the determinations that she had made.

[44]      The applicant argued that the events accepted by the adjudicator as a basis for finding that the dismissal was prompted by just factors were never raised before the hearing.

[45]      The applicant alleged that the adjudicator incorrectly applied the culminating incident theory, in that the three incidents to which she referred had not previously been the subject of disciplinary action.

[46]      The applicant submitted that the adjudicator used the corporate restructuring as a pretext to lower the respondent company's burden of proof.

RESPONDENT COMPANY'S ARGUMENTS

[47]      The respondent company submitted that the adjudicator rendered her decision after a detailed and painstaking analysis of the evidence submitted.

[48]      The respondent company argued that the question the adjudicator had to answer was: "whether the subsequent events constitute serious faults that are the culmination of a series of similar faults and that therefore can justify the dismissal from employment" (Respondent's Memorandum of Fact and Law, paragraph 23) and that is precisely what she answered.

[49]      Finally, the respondent company maintained that the adjudicator did not make a patently unreasonable error.

ANALYSIS

Standard of review

[50]      The privative clause contained in section 243 of the Code requires a high level of judicial restraint, as Rouleau J. noted in Kelowna Flightcraft Air Charter Ltd. v. Ladislav Kmet, [1998] F.C.J. No. 740. Consequently, several decisions of this Court have indicated that the standard of review on a question of fact and law decided by a labour law tribunal is that of the patently unreasonable decision (Canada (Attorney General) v. Cleary, [1998] F.C.J. No. 1920; Frezza v. Canadian Pacific Ltd., [1999] F.C.J. No. 105; Teeluck v. Canada (Treasury Board), [1999] F.C.J. No. 1544; Gauthier v. Bank of Canada, [2000] F.C.J. No. 1453; Lamontagne v. Climan Transportation Services (2747-7173 Québec Inc.), [2000] F.C.J. No. 2063; Bauer v. Seaspan International Ltd., [2004] F.C.J. No. 1749).

[51]      Thus, in order to set aside the adjudicator's decision in this case, the applicant will have to show that the tribunal made a patently unreasonable error, that is, that there was no rational basis for its conclusions.

[52]      Did the adjudicator review her preliminary decision, and if so, did she exceed her jurisdiction?

[53]      The purpose of the decision dated March 15, 2004, was precisely to determine whether the adjudicator appointed under section 242 of the Code had jurisdiction to hear the unjust dismissal complaint filed by the applicant in this case. Thus, if the adjudicator found that the termination of the applicant's employment was due solely to a lack of work or to the abolition of his position, she had to find that she lacked jurisdiction.

[54]      Section 242 of the Code reads as follows:

R.S.C. 1985, c. L-2, s. 242; R.S.C. 1985 (1st Supp.), c. 9, s. 16; S.C. 1998, c. 26, s. 58.

[55]      In order to determine whether [TRANSLATION] "the lack of work or abolition of the position was the real, effective and primary cause of the dismissal of the complainant, or whether instead the employer used the pretext of a corporate restructuring to get rid of an unwanted employee" (paragraph 89, decision dated March 15, 2004), the adjudicator undertook a relatively complete review of the evidence, especially the employer's evidence, since the latter had the burden of establishing on a balance of probabilities that the employment termination was economically justified (see paragraph 29 and 51 of Thomas v. Enoch Cree Nation Band, [2003] F.C.J. No. 153, aff'd Court of Appeal, [2004] F.C.A. No. 3).

[56]      At the hearing on the merits, the adjudicator had to determine whether the dismissal was unjust. To do this, she necessarily had to assess the context in which the applicant was dismissed, namely corporate restructuring. In this regard, she had to consider whether the respondent company had provided a reasonable explanation for the employer's decision to dismiss (see Thomas v. Enoch Cree Nation Band, supra, paragraph 55).

[57]      The fact that the adjudicator took the restructuring into account when assessing whether the dismissal was fair does not amount to reassessing the motivation for the dismissal of the applicant, as he argued. Rather, it is an evaluation process which the case law has developed in this area: Thomas v. Enoch Cree Nation Band, supra.

[58]      Did the adjudicator err in law by incorrectly applying the theory of the culminating incident?

[59]      In Abénakis of Wôlinak Band (Council) v. Bernard, [2000] F.C.J. No. 327, Tremblay-Lamer J. dealt briefly with the theory of the culminating incident. She said the following:

¶ 10         The plaintiff maintained that this was an error of law. It noted that, under the theory of the culminating incident, it could as employer rely at the time of dismissal on grounds of misconduct for which there had already been a penalty provided other acts had followed subsequently.

¶ 11         I consider that the plaintiff is correct. The adjudicator erred in fact and in law by applying the "double penalty" theory to the same facts. In the case at bar we were not dealing with the same facts underlying, but with subsequent incidents of the same type.

¶ 12         The adjudicator had to determine whether the culminating incident was significant enough to allow the plaintiff to rely on the earlier incidents. In other words, were these serious mistakes which were the outcome of a series of similar mistakes and which could justify dismissal at that time? The adjudicator did not take this approach. This was a patently unreasonable error which justifies intervention by this Court.

[60]      In view of these facts, I do not think the adjudicator erred when she found that the events following the CAP imposed on the applicant were events of the same type, indicating that he had not shown any intention or desire to amend his professional conduct in general.

[61]      At paragraph 50 of the impugned decision, the adjudicator said the following:

[TRANSLATION]

The complainant knew the seriousness of the CAP imposed upon him, since it was a final CAP. He also admitted he was afraid of losing his job at that time. The employer objected to his lack of reliability and professionalism, his difficult relations with his fellow employees, including a lack of respect for them. Only a few weeks after the CAP was lifted, the complainant did not submit work assigned to him and did work he was not asked to do, which again shows a lack of reliability and professionalism, and he was a party to two incidents in which his fellow employee Mr. Joseph was insulted and/or annoyed. Clearly, the complainant did not understand his employer's message which was, it will be recalled, a final one.

[62]      In addition, it should be recalled that the CAP imposed on the complainant and Mr. Letourneau's letter telling him of the closure of the CAP in May 2002 both referred to the fact that the applicant was on probation and that his employment with the respondent company was tenuous.

[63]      Did the adjudicator err in law by requiring the wrong burden of proof from the employer to justify a disciplinary dismissal?

[64]      In view of the foregoing, it cannot be reasonably be said that the adjudicator lowered the burden of proof required from the employer.

[65]      The adjudicator was visibly satisfied with the evidence submitted by the respondent company, indicating that the applicant had committed certain reprehensible acts justifying the termination of his employment after several warnings (see Bell Canada v. Hallé (F.C.A.), [1989] F.C.J. No. 555, and Gauthier v. Bank of Canada, [2000] F.C.J. No. 1453).

[66]      I should like to reiterate that this Court will only reverse a decision by an adjudicator in labour law when that decision is patently unreasonable.

[67]      The Court cannot intervene simply because, based on the facts, it may have reached some other conclusion than the administrative tribunal, and I am not saying that I would have reached a different decision.

[68]      The adjudicator had sufficient evidence before her to find as she did.

[69]      It is impossible for the Court to find that the decision was patently unreasonable.

CONCLUSION

[70]      For all of the foregoing reasons, the application for judicial review is dismissed. Costs are awarded to the respondent.

OTTAWA, Ontario

March 1st, 2005

Certified true translation

K.A. Harvey

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                   T-1453-04

STYLE OF CAUSE:                                                   SAMEH NASSR v. Tele-Mobile Company (Telus Mobility)

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               February 17, 2005

REASONS:                                                                 The Honourable Mr. Justice Teitelbaum

DATED:                                                                      March 1, 2005

APPEARANCES:

William de Merchant                                                      FOR THE APPLICANT

Robert Finta                                                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Ouellet, Nadon & Associés                                           FOR THE APPLICANT

Montréal, Quebec

Robert Finta                                                                  FOR THE RESPONDENT

Legal Branch, Telus Mobility