Date: 20000906
Docket: T-1866-98
Between:
MICHEL GAUTHIER
Applicant
- and -
Ms. DIANE FORTIER
Respondent
- and -
THE BANK OF CANADA
Respondent
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1] This is an application under section 18.1 of the Federal Court Act for judicial review of an adjudication award rendered by Ms. Diane Fortier, an adjudicator and a respondent herein, on August 19, 1998 pursuant to a complaint of unjust dismissal filed by the applicant under sections 240 et seq. of the Canada Labour Code, R.S.C. 1985, c. L-2 (hereinafter the Code).
FACTS
[2] On August 31, 1992, the Bank of Canada (hereinafter the Bank) hired the applicant as a security officer at its Montréal branch on Nuns' Island.
[3] In April 1993, a head of protection services position was opened in the branch. The applicant applied for this position and obtained it on May 17, 1993. His major duty was to manage the security-related operations and supervise sixteen (16) security officers.
[4] Following this appointment, the Bank observed certain deficiencies in the applicant's management style. His immediate superior, Mr. Dorian Leon Lynch, head of protection services for all branches of the Bank in Canada, reported in his testimony at the hearing before the adjudicator, Ms. Fortier, that the troubles began in the fall of 1994, when he began to list various problematic situations involving the applicant. Mr. Lynch reported a number of conflicts between the applicant and other members of the Bank's staff such as the building's manager, Mr. Ron Richard, and a specialist in protection systems, Mr. Murphy.
[5] After observing the applicant's management, Mr. Lynch prepared a report on the applicant's performance evaluation for the period between August 1992 and October 1995, which states:
[Translation]
Report on performance evaluation and professional development
J.H.M.B. Gauthier
For the period August 1992 to October 1995
Mr. Gauthier's evaluation covers both his position as a security officer (from May 3, 1992 to May 17, 1993) and his position as head of protection operations at the MAOC (from May 17, 1993 to now).
As a MAOC security officer, Mr. Gauthier demonstrated that he had a good understanding of the essential concepts of industrial security. He often made suggestions to his department head in this regard and was always prepared to volunteer for any additional work. His performance during this period was "entirely satisfactory".
When the position of head of protection operations at the MAOC became vacant, Mr. Gauthier applied for and obtained the position. It was his knowledge and experience of industrial security in particular that led to his selection. For example, when Michel obtained this position, the MAOC had not had a full-time protection operations head for a fairly long time, and Michel had to carry out a considerable amount of work to ensure that the operations went normally. During this period, Michel worked very hard and put in a lot of overtime.
Under the general direction of the department head -- Operations, Mr. Gauthier handles operations pertaining to security at the MAOC and manages a staff of 16 security officers. He handles, together with the specialized security technician, the duties of representative of the Protection Services Division for anything having to do with security. He provides all Bank personnel working at the MAOC with the necessary advice and supervision in relation to protection of the premises, persons and information. He is responsible for developing procedures and guidelines pertaining to all security functions and systems within the MAOC.
Mr. Gauthier has a great concern for detail and thoroughly studies any security-related project that interests him. Any request for information he receives results in a mass of correspondence, articles and recommendations. His immense capacity for work and his search for perfection must, in all fairness, be emphasized. However, he should be careful not to become too involved in a particular aspect of his work, as this can lead him to devote an excessive amount of time to it to the detriment of his managerial duties. Mr. Gauthier must avoid over-extending himself and see that he manages his time adequately so that the priorities he has set jointly with the head office can be met. Michel might thereby have more time for the management duties. He could thereby do a lot to dissipate the impression his employees have that he is distant and disinclined to maintain good interpersonal relations.
Like many workaholics, Mr. Gauthier gives the impression of being a solitary person, who seems to prefer doing everything himself, so that each thing is done according to his personal standards, which are very high. He does not often involve his staff in his projects or voluntarily seek out opinions or their participation. Accordingly, since his employees think he has little or even no confidence in them, the morale among the security officers is very low. They feel isolated and recognize few leadership skills in him. This is a matter of concern since, in a crisis situation, they will as a matter of fact have to count on Michel's leadership skills and perhaps even rely on the soundness of his judgment for their own security and even their lives.
Michel's ability to maintain good relationships with others, to communicate and to assume management tasks has proved to be weak. His conduct with his colleagues has resulted in a lot of friction in both Montréal and Ottawa. Michel was urged to take a Situational Leadership course in Ottawa in the hope he would overcome his weaknesses. Unfortunately, Michel thought this course was worthless and has since demonstrated that he got almost nothing out of it. Michel is convinced that his approach is the only valid one, and this will always be an obstacle to the development of his management capacities.
At the outset of his career with the Bank, Michel showed that he was prepared to break with the status quo. His superiors at first considered this a very fine quality that they should encourage But they gradually came to realize that this quality was in fact a weakness owing to Michel's approach. There is a right way and a wrong way to produce changes in an organization. Michel is always quick to criticize a policy or procedure of the Bank, whether it concerns security, training, human resources or even accounting. The heart-breaking thing is that in most cases his criticisms are not really justified and, even after the policy or procedure has been explained to him, Michel will tirelessly pursue the mission he has set for himself of convincing his co-workers that the Bank is wrong and he is right.
The Division's management has spent many hours trying to "persuade" Michel that his approach was neither desirable nor acceptable, either for the Division or for the Bank. The difficult thing is that Michel considers any criticism of his suggestions as a personal attack on himself. Even when he indicates agreement on a point, he takes advantage of the first opportunity that occurs to put this point back on the table in the presence of another person in order to get that person to line up with him. This divide and rule approach has become something of a pain, and we have pointed out to him that he didn't need to do this and that it was a very poor use of his time as a manager.
Michel has a poor understanding of his role and responsibilities as protection operations head with the MAOC. He seems to think that compliance with the policies and procedures is optional and that he can adapt these to his own needs. We have told him many times that he is our representative with the MAOC and not an independent agent. He continually modifies the procedures or does not take into account the policies in security matters on the pretext that he knows best what's going on.
Finally, in view of the dangers and risks that are always present, the way in which Michel enforces industrial security and the solutions he proposes have proved to be too Draconian for the Bank. Michel should take into account the degree of probability that the apprehended events will occur and not always prepare with a view to the worst possible outcome. The Bank is an institution in which security and operational needs must be assessed according to their respective merits. No security program will ever completely eliminate the risk of property loss, and it is our job to assess the dangers and risks and determine the appropriate optimal security.
In short, although there is no doubting Michel's integrity or his willingness to protect the Bank's property, he must show his readiness to accept and consistently adhere to the Division's policies and procedures, as well as those of the Bank. Furthermore, Michel should spend more time with his staff to manage them, supervise them, train them and explain his views to them. He must stop being a manager fixed on doing his own thing, who communicates with his staff through memoranda.
During the period covered by this evaluation, Michel failed to fulfill the major requirements of his position, which has earned him the "less than satisfactory" classification. It is to be hoped that Michel will take these observations into account and that with the help of his superior he will make some efforts to improve his performance during the next evaluation period.
[Emphasis added]
[6] The applicant was informed of this evaluation report on October 11, 1995, during a meeting with Messrs. Aiken and Lynch. Later, in response to this performance evaluation, Mr. Gauthier sent a letter to Mr. Lynch, dated October 17, disputing the evaluation. On October 25, 1995, Mr. Aiken sent a letter in reply to the applicant's dispute.
[7] Also in October 1995, the record indicates, ten of the sixteen security officers working under the applicant's supervision asked to meet with Mr. Lynch to discuss some problems they were experiencing under the applicant's management.
[8] In response to this request by the security officers, Mr. Lynch organized a meeting in November 1995 together with Ms. Séguin, a representative of Human Resources. During this meeting, which was conducted on a voluntary basis, the eight security officers present filled out a questionnaire designed to determine their degree of satisfaction with their work environment, the performance evaluations made by the applicant and the employees' morale. All in all, the comments made concerning the applicant's management are rather negative, and the most serious ones were filed at the hearing before the adjudicator:
| "... When Mr. Gauthier is around there is a lot of undue pressure. In such a state, officers could be pushed or trapped into making wrong moves when reacting to a situation. This could prove to be very dangerous." |
| "... I don't know who we are working for, I am not sure if it is for Brendan (MURPHY - T.S.S.), or Michel. There is a lot of bickering between Michel and Brendan. Brendan appears to be responsible for the matrix system and whenever there is an action (change on it???), Michel fights it all the way. The security officers are caught between Michel and Brendan!" |
| "...I agree that the working environment is problematic. Michel's leadership tends to put everyone against each other. It seems that Michel feels if the officers are against each other they will be more open and the comments will get back to him." (Sounds like the divide and rule principle to me! -DLL) |
| "...He (Michel) has made it clear that he does not like ex-policemen or military and as such does not listen to my ideas". |
| "...I don't appreciate some of the comments Mr. Gauthier makes, (ie), we would train monkeys on the console. I don't believe I should be compared to a monkey". |
| "...the group of twelve officers that form the other camp get along well with each other and work primarily with little or no supervision" |
| "...he (Michel) is not receptive of advice, no matter what is asked he will do the opposite. If we want something now we will give him the wrong answer or advice, and he will then give us the opposite or what we wanted in the first place". |
| "...here at MAOC the Manager is not respected as an individual. A lot of this may stem from the fact he does not have a police or military background". |
| "...I believe Michel has the will to do a lot of stuff, but I also think that he is stalled by Head Office". |
| "...there sometimes appears to be too many chiefs and not enough Indians ...[my note: -indication that everyone wants to run the show and it is difficult for Michel to achieve results under these conditions]." |
[9] On January 3, 1996, Mr. Lynch, the Manager of the Bank's protection division, and Mr. Brian Aiken, Head of the Bank's protection division for all buildings in Canada, met with the applicant to verify whether there had been any improvement in the performance of his duties as a result of the performance evaluation he had been given.
[10] The record indicates that during this meeting of January 3, 1996, the applicant refused to admit the deficiencies reported in his performance evaluation and retorted that it was they (Messrs. Lynch and Aiken), instead, who were wrong in doubting his management abilities.
[11] Following this meeting, on January 4, 1996, Mr. Aiken sent a letter to his immediate superior Mr. Stephenson recommending the applicant's dismissal on grounds of incompetence, attitude and managerial comprehension.
[12] On January 9, 1996, Mr. Aiken notified the applicant of the termination of his employment with the Bank and hand-delivered to him a letter of dismissal. A separation indemnity was offered to the applicant, who decided to refuse it.
[13] On February 22, 1996, the applicant filed a complaint under section 240 of the Code for unjust dismissal.
STATUTORY PROVISIONS
[14] The following are the relevant sections of the Code:
| 240. (1) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous employment by an employer, and
(b) who is not a member of a group of employees subject to a collective agreement, may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
(2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.
(3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.
241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.
(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.
(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),
(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and
(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.
242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).
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| (2) An adjudicator to whom a complaint has been referred under subsection (1)
(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
(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.
243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.
244. (1) Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.
(2) On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.
245. The Governor in Council may make regulations for the purposes of this Division defining the absences from employment that shall be deemed not to have interrupted continuity of employment.
246. (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.
(2) Section 189 applies for the purposes of this Division. [Emphasis added]
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| 240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si :
a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;
b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective.
(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.
(3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l'intéressé a déposé sa plainte à temps mais auprès d'un fonctionnaire qu'il croyait, à tort, habilité à la recevoir.
241. (1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l'employeur de lui faire connaître les motifs du congédiement; le cas échéant, l'employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande.
(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.
(3) Si la conciliation n'aboutit pas dans un délai qu'il estime raisonnable en l'occurrence, l'inspecteur, sur demande écrite du plaignant à l'effet de saisir un arbitre du cas :
a) fait rapport au ministre de l'échec de son intervention;
b) transmet au ministre la plainte, l'éventuelle déclaration de l'employeur sur les motifs du congédiement et tous autres déclarations ou documents relatifs à la plainte.
242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement.
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| (2) Pour l'examen du cas dont il est saisi, l'arbitre :
a) dispose du délai fixé par règlement du gouverneur en conseil;
b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
(3) Sous réserve du paragraphe (3.1), l'arbitre :
a) décide si le congédiement était injuste;
b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre.
(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants :
a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;
b) la présente loi ou une autre loi fédérale prévoit un autre recours.
(4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur :
a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;
b) de réintégrer le plaignant 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.
243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
(2) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.
244. (1) La personne intéressée par l'ordonnance d'un arbitre visée au paragraphe 242(4), ou le ministre, sur demande de celle-ci, peut, après l'expiration d'un délai de quatorze jours suivant la date de l'ordonnance ou la date d'exécution qui y est fixée, si celle-ci est postérieure, déposer à la Cour fédérale une copie du dispositif de l'ordonnance.
(2) Dès le dépôt de l'ordonnance de l'arbitre, la Cour fédérale procède à l'enregistrement de celle-ci; l'enregistrement confère à l'ordonnance valeur de jugement de ce tribunal et, dès lors, toutes les procédures d'exécution applicables à un tel jugement peuvent être engagées à son égard.
245. Le gouverneur en conseil peut, par règlement, préciser, pour l'application de la présente section, les cas d'absence qui n'ont pas pour effet d'interrompre le service chez l'employeur.
246. (1) Les articles 240 à 245 n'ont pas pour effet de suspendre ou de modifier le recours civil que l'employé peut exercer contre son employeur.
(2) L'article 189 s'applique dans le cadre de la présente section.
[mes soulignés]
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[15] Ms. Fortier was appointed adjudicator pursuant to the Code provisions and proceeded with the hearing of the complaint, which was held in Montréal for 11 days. On August 19, 1998, the adjudicator dismissed the applicant's complaint on grounds that will be clarified later.
[16] On September 25, 1998, the applicant filed an application for judicial review in this Court.
ADJUDICATOR'S DECISION
[17] Sixteen witnesses testified at the hearing, seven on behalf of the applicant, then the complainant, and nine on behalf of the employer, the Bank of Canada. Reading the adjudicator's decision, I note that she provided a comprehensive description of the testimony and, after weighing it up, concluded as follows:
| It is clear to me here that this is an administrative dismissal and not a disciplinary dismissal. Although Parliament makes no distinction between them, an adjudicator will nonetheless approach a case of administrative dismissal in a way that differs from that of a disciplinary dismissal. I subscribe to the remarks of the arbitrator Mr. Charles Turmel in the decision tabled by the employer, Services Techniques Informatiques S.T.I. Inc. et Bernard Tessier, [1991] T.A. 188, when he writes: |
| After examining the whole of the record, I reach the following conclusions: |
| 1. The grievor's dismissal is an administrative dismissal. The major reasons cited by the employer are based on the notions of attitude and performance. In no case does the record disclose any disciplinary measure taken by S.T.I. against the grievor. |
| Consequently, the employer is not subject to the rules of the culminating incident and the gradation of punishments. In an administrative dismissal, the burden of proving just and sufficient cause for dismissal always rests on the employer. It must always, by a preponderance of evidence, convince the arbitrator that it had just and sufficient cause. However, the cases hold that in such instances the arbitrator must not substitute his judgment for that of the employer and shall intervene only if he reaches the conclusion that the employer acted in an unreasonable, unfair or discriminatory way. (Pages 195 and 196) ... |
| 4. As I see it, therefore, my assessment of the evidence must be limited to verifying whether the employer, in citing the grievor's attitude and performance as just and sufficient cause for his dismissal, thereby acted in an unreasonable, unfair or discriminatory way. (Page 196) |
| Essentially, the dismissal is justified by the content of the evaluation conducted by Mr. Lynch for the year 1994-95 (P-3) and the outcome of the meeting between Mr. Aiken and Mr. Gauthier. |
| I am of the opinion that the record did in fact show that Mr. Gauthier's presence in the Bank of Canada was no longer desirable. He was having some problems with a number of his employees, with Mr. Murphy, with Mr. Richard and with the management. |
| As a backdrop, I have the feeling that the complainant had a vision of the security system that many people did not share. This vision created confrontations at all levels. When I review the daily notes made by Mr. Lynch (P-5) and by Mr. Gauthier (S-17), they are strewn with conflicts on a host of topics. |
| Mr. Gauthier demanded that his officers be given further training, that Mr. Murphy wear a uniform and carry a weapon, that any security matter be under his supervision, that management support him in his way of seeing things. In themselves, all these demands were addressed to the Bank's interest and perhaps Mr. Gauthier was right. However, I must note that the complainant's insistence and his way of insisting led to such a deterioration of the situation that he effectively had to leave the Bank. It seems clear that there was no longer a team in the security service, when I review the versions of the ten security officers who testified for the employer and for the complainant. The evidence demonstrated that there were two clans. One clan shared Mr. Gauthier's approach, while the other felt knocked about, insecure and stressed. The complainant's counsel finds it paradoxical that the security officer witnesses for the employer complained both about Mr. Gauthier's absence from their work sites and about the constant surveillance to which they were subjected. But what I gathered from this testimony was that while deploring the lack of support from their division head, they thought they were being surveilled by the clan that was favourable to Mr. Gauthier. To them, this was confirmed by the phrase "I have heard that...". |
| All of the officers who testified for the employer stated that since Mr. Gauthier's departure the work environment was now normal under the management of a new division head. They were no longer witnessing disputes between their division head and Mr. Richard or Mr. Murphy. |
| The organizational structure probably did not help in resolving the conflicts among Messrs. Gauthier, Richard and Murphy. I need not take a position on this organization. That falls within the employer's sphere of management. Having said that, even if I were to conclude that this structure was not adequate this would not mean that the employer, in its decision to dismiss Mr. Gauthier, acted in bad faith. |
| Mr. Gauthier did not feel he was supported by management and this was undermining his credibility and authority. If management did not agree with the complainant's positions and was altering his decisions, this obviously resulted in a loss of credibility both with his co-workers and with his subordinates. The complainant's counsel points out that the decision to withdraw Mr. Murphy from Mr. Gauthier's orders impugned his credibility. While acknowledging that this action by the employer was not very diplomatic, I am obliged to consider the content of letter S-34, which Mr. Gauthier had sent to Mr. Murphy the day before. This was certainly not the best way in which to establish his authority. In any event, I saw this decision not as a manifestation of bad faith but rather as an act of exasperation by the employer in light of the ongoing conflict between Mr. Gauthier and Mr. Murphy. Mr. Aiken may very well say that this decision had nothing to do with this conflict and that it applied simultaneously in Montréal and in Toronto, but it seems to me that the coincidence is huge. Indeed, this decision was taken the day after Mr. Gauthier's letter (S-34) and on the day preceding its sending management was exhorting the complainant to inform Mr. Murphy of his expectations. Generally speaking, it seems to me that a decision pertaining to changes in line authority is not taken within a few hours. Whatever the case, I was given no evidence that this decision was tainted by bad faith, but rather was motivated by an attempt to resolve a conflict. |
| The complainant's counsel argued at length that Mr. Gauthier had not been informed or formally notified that his conduct was not accepted by management. He says, inter alia, that 2 days after his evaluation, Mr. Gauthier was dismissed. First, this is not a case in which the gradation of punishments is the appropriate procedure. Mr. Gauthier did not need to be punished, he was not engaging in misconduct. It was his ability to manage his staff and compromise with his co-workers and management that was at issue. Furthermore, I do not have the same understanding of the evidence. Mr. Gauthier had been given his evaluation in October 1995 and one can observe in his letter of October 17 (P-12) how he reacted. |
| Mr. Aiken and Mr. Lynch did not treat this matter as a disciplinary matter. They, and particularly Mr. Lynch, tried to help Mr. Gauthier. When the complaints began in 1994, Mr. Lynch intervened with the complainant. He also organized the Richard/Gauthier meeting in May 1995. He asked the complainant to take a leadership course. |
| Mr. Lynch often pointed out to Mr. Gauthier that he had to resolve his problems himself. As Mr. Lynch noted in his letter of November 24, 1995 (P-8), Mr. Gauthier was at a point of no return. |
| "I personally feel Michel is at the point of no return. His problems are really character faults that would be difficult to overcome." |
| The evidence I heard corresponds to what can be read in Mr. Lynch's evaluation (P-3) and in his letter of November 24, 1995 (P-8). Mr. Lynch's credibility was never challenged by the complainant, and still less his integrity and judgment. The complainant himself said that he maintained excellent relations with Mr. Lynch. Mr. Lynch even suggested that Mr. Gauthier work for him in Ottawa. There was no position available. The Bank's decision is based on Mr. Lynch's evaluation. I do not see how I could substitute my judgment for his. I am unable to do so and I have no reason to do so. I see even less reason to hold that the evaluation that he made was malicious, discriminatory or made in bad faith. |
APPLICANT'S SUBMISSIONS
[18] The applicant submits that the respondent erred in deciding to divide the notion of unjust dismissal in two, that is, administrative dismissal and disciplinary dismissal, when this distinction does not exist in the Code.
[19] It is submitted that the adjudicator should have assessed the accuracy of the evaluation report by Mr. Lynch, since the employer relied on that report in dismissing the applicant.
[20] The applicant argues that the adjudicator committed a patently unreasonable error in finding that the dismissal in question was an administrative dismissal, since this finding is not supported in any way by the evidence.
[21] The applicant emphasizes that it was instead a disciplinary dismissal, since it resulted from the employer's dissatisfaction in regard to his management style and his attitude.
[22] These were weaknesses that could have been improved, therefore, and that should have been subject to prior sanctions. The applicant further notes that he was not informed soon enough of his deficiencies or given an opportunity to remedy them.
[23] The applicant submits that the adjudicator also committed a patently unreasonable error in refusing to substitute her judgment for that of the employer in regard to the fairness of the employer's decision to dismiss him.
[24] The applicant argues that the adjudicator must satisfy herself that it would have been inappropriate for the employer to elect another, less drastic option than that of dismissing him.
[25] Finally, the applicant submits that the adjudicator committed a patently unreasonable error by requiring him to prove the bad faith of his employer when sections 240 et seq. of the Code place the onus on the employer to justify the dismissal of an employee who files a complaint of unjust dismissal.
ISSUES
[26] Having regard for the arguments advanced by the applicant, I conclude that three issues are raised in the context of this judicial review:
Did the adjudicator err in law in finding that, in the context of this case, an administrative dismissal was involved?
In the assessment of the evidence, did the adjudicator err in law in applying the legal principles pertaining to the determination of whether a dismissal was for just cause?
Did the adjudicator err in law in that she allegedly imposed on the applicant the onus of proving his employer's bad faith?
APPLICABLE LAW
Standard of review
[27] The Supreme Court of Canada has on many occasions restated the principles governing the attitude that the courts should adopt when reviewing a decision rendered by a labour relations arbitration tribunal. Recently, in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, Cory J. stated:
| 35. Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 (PSAC No. 2), emphasized the essential importance of curial deference in the context of labour relations where the decision of the tribunal, like the Board of Arbitration in the instant appeal, is protected by a broad privative clause. There are a great many reasons why curial deference must be observed in such decisions. The field of labour relations is sensitive and volatile. It is essential that there be a means of providing speedy decisions by experts in the field who are sensitive to the situation, and which can be considered by both sides to be final and binding. |
| 37. It was for these reasons that PSAC No. 2 stressed that decisions of labour relations tribunals acting within their jurisdiction can only be set aside if they are patently unreasonable. That is very properly an extremely high standard, and there must not be any retreat from this position. Anything else would give rise to the endless protraction of labour disputes resulting in unrest and discontent. Indeed the principle of judicial deference is no more than the recognition by courts that legislators have determined that members of an arbitration board with their experience and expert knowledge should be those who resolve labour disputes arising under a collective agreement. |
| 38. A decision as to whether there is "just cause" for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable. See the reasons of Beetz J. (for the majority) and the separate concurring reasons of Lamer J. in Blanchard, supra, at pp. 479 and 491-92. |
| 41. A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. |
| 42. Where a tribunal is interpreting a legislative provision, the test is: |
| . . . was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? |
| See [1979] 2 S.C.R. 227">Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 237. |
| 43. A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene "so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear": Bradco, supra, at p. 341. |
| 44. It has been held that a finding based on "no evidence" is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in [1980] 1 S.C.R. 245">Douglas Aircraft Co. of Canada v. McConnell, [1980] 1 S.C.R. 245, at p. 277: |
| . . . a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. |
| 45. When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact": Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. |
| 46. All these tests are strict: see Blanchard, supra, at p. 481 per Beetz J. and at p. 493 per Lamer J. In PSAC No. 2, supra, it was put in this way at pp. 963-64: |
| It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational. . . . Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test. |
| Yet courts also have a duty to protect parties from a decision which is patently unreasonable. |
[28] As we can see, Parliament has in fact, in section 243 of the Code, provided a privative clause covering the decisions of an adjudicator in the context of a complaint filed under section 240. Thus it goes without saying that this Court, in the context of judicial review of such decisions, must act with great circumspection and deference.
[29] Furthermore, I share the opinion of Heald J.A. in Aziz v. Telesat Canada (1995), 104 F.T.R. 267 (F.C.A.), who, following an analysis of the relevant case law, correctly summarized the applicable standards of review in the case of decisions rendered by an adjudicator:
| [19] To summarize, the relevant jurisprudence clearly establishes that the standard of review relating to errors of fact and law is the high or strict test of patent unreasonableness. It also establishes that the lower standard of correctness applies where the errors relate to provisions defining the jurisdiction of an adjudicator. [Emphasis added] |
ANALYSIS
The notion of unjust dismissal in the Canada Labour Code
[30] The Federal Court of Appeal has had occasion to discuss the notion of unjust dismissal within the meaning of the Code. In Bell Canada v. Hallé (1989), 99 N.R. 149, Pratte J.A. noted the adjudicator's obligation in the course of his analysis of a dismissal:
| The question presented to him was whether the respondent had been unjustly dismissed. In order to answer this, he first had to consider the nature, sufficiency and merits of the reasons for dismissal. Accordingly, in the case at bar the adjudicator should have considered whether the applicant had any basis for complaint about the respondent's performance and whether this provided grounds for dismissal. [See footnote 2]. If the adjudicator had answered these questions in the affirmative, he should then have considered whether the procedure leading to dismissal of the employee was fair. [Emphasis added] |
[31] In this same judgment, Marceau J.A. makes an excellent analysis of the notion of dismissal as provided in the Code:
| [17] The distinction between the two major types of dismissal which may give rise to a remedy under s. 61.5 of the Canada Labour Code (s. 242 since the coming into effect of the Revised Statues of Canada, 1985) of course presents no difficulty in conceptual terms. No one has any trouble distinguishing in theory between a dismissal imposed because of an employee's misconduct and a dismissal resulting from an employee's inability to perform the duties of his position with the necessary skill and competence. In practice, however, the confusion between these two types of dismissal, one known as "disciplinary" and the other as "administrative", seems to be quite frequent, and this is sometimes readily understandable as the employee's failure to perform his duties will often be due to both misconduct and lack of aptitude, but this in my opinion is always unfortunate. It is unfortunate because the distinction between the two types of dismissal has important consequences, in my opinion, for the function which the adjudicator is required to perform in acting on the employee's complaint. |
| [18] It is hardly worth repeating that while this new remedy under s. 61.5 (now s. 242) completely modified the employer's right of dismissal -- to preclude the arbitrary action which might be committed by the latter and ensure continuity of employment -- it has not abolished that right. The employer still has a right of "just" dismissal, which undoubtedly means, as I have had occasion to observe [see footnote 1: In my reasons in Canadian Imperial Bank of Commerce v. Boisvert, [1986] 2 F.C. 431, at p. 441], "dismissal based on an objective, real and substantial cause, independent of caprice, convenience or purely personal disputes, entailing action taken exclusively to ensure the effective operation of the business". In all cases of complaints by dismissed employees pursuant to s. 61.5, the adjudicator must ascertain whether the employer simply acted within the limits of his "right of just dismissal", and it is for the employer to persuade him of this: however, the evidence required from the employer to satisfy the adjudicator clearly cannot be the same or have the same purpose in both types of dismissal. |
| [19] In the case of a disciplinary dismissal, the adjudicator cannot be satisfied without proof that the act or acts of alleged misconduct were actually committed and that they were sufficiently serious to justify breaking the contract of employment; but in the case of an "administrative dismissal", the evidence cannot relate to positive facts of the same type or be as strict and precise. An adjudicator does not have the opportunity, nor often the capacity, to rule conclusively on an employee's competence and ability to meet the requirements of a position. What the employer must prove, given this definition of just dismissal which I suggested, is that he acted with complete objectivity, responsibly, independent of any passing whim, without discrimination and solely for the good of his undertaking. |
| [20] An attempt has been made to clarify what must be established still further. Thus, in Re Edith Cavell Private Hospital and Hospital Employees' Union, Local 180 (1982), 6 L.A.C. (3d) 229 (B.C.), the adjudicator Hope said the following: |
| ...An employer who seeks to dismiss an employee for a nonculpable deficiency in job performance must meet certain criteria: |
| (a) The employer must define the level of job performance required. |
| (b) The employer must establish that the standard expected was communicated to the employees. |
| (c) The employer must show it gave reasonable supervision and instruction to the employee and afforded the employee a reasonable opportunity to meet the standard. |
| (d) The employer must establish an inability on the part of the employee to meet the requisite standard to an extent that renders her incapable of performing the job and that reasonable efforts were made to find alternate employment within the competence of the employee. |
| (e) The employer must disclose that reasonable warnings were given to the employee that a failure to meet the standard could result in dismissal. |
| For my part, I think that what must be proven will vary depending on the case but will always have to be established in accordance with the definition of "just dismissal", as I said I understood it, and consistent therefore with what is to be determined, namely the reasonableness of the employer's appraisal of the employee's lack of competence. [Emphasis added] |
Application of the principles to this case
[32] Accordingly, I find that it was appropriate for the adjudicator to determine what type of dismissal was at issue, in order to be able to correctly assess the facts at issue as they emerge from the whole of the evidence submitted. This requirement flows directly from the Hallé decision, supra.
[33] However, the applicant criticizes the adjudicator for finding that in this case it was an administrative dismissal and not a disciplinary dismissal.
[34] Having regard for the applicable standard of review in such cases, and after observing the documents on the record, I conclude that the adjudicator did not err in interpreting the evidence before her and finding that it was an administrative dismissal.
[35] What is involved here is an assessment of testimony at the hearing and the documentary evidence that was filed. As I said earlier, it is clear law that this Court shall not intervene unless it is obvious that the adjudicator erred in her interpretation of the facts as disclosed by the evidence.
[36] I find, from the evidence filed with the adjudicator at the hearing and contained in the adjudication award, that the applicant took very seriously the job assigned to him as head of protection services but seemed instinctively unable to perform the personnel management duties connected with it. Furthermore, the performance evaluation report by Mr. Lynch, the applicant's immediate superior, reflects this situation. Accordingly, pursuant to what Cory J. says in Toronto (City) Board of Education, supra, I find that I am unable to intervene. The evidence, which was in fact viewed reasonably by the adjudicator, is capable of supporting her findings of fact on this point.
[37] Repeating the principles explained above by the Federal Court of Appeal in Hallé, supra, the employer must prove that it acted with completely objectivity, responsibly, independent of any passing whim, without discrimination and solely for the good of its undertaking. The adjudicator, for her part, must look at the reasonableness of the employer's appraisal of the employee's lack of competence.
[38] However, and it is especially important to say this, Marceau J.A. also notes in Hallé, supra, the difficulties pertaining to the assessment of the evidence in the case of an administrative dismissal when he states: "An adjudicator does not have the opportunity, nor often the capacity, to rule conclusively on an employee's competence and ability to meet the requirements of a position."
[39] In his submissions, the applicant criticizes the adjudicator for refusing to substitute her judgment for that of the employer in her assessment of whether the dismissal was just.
[40] But if I follow the applicable law on such matters, I am unable to subscribe to this argument. I note that the adjudicator clearly assessed the implications of Mr. Lynch's report and analyzed the evidence presented to her as a basis for judging the accuracy of this report. I have found that the evidence corresponded to the problems outlined in that report, and I conclude that the adjudicator was right to refuse to substitute her judgment for that of Mr. Lynch. Furthermore, I think the remarks by Marceau J.A. are very pertinent to this case since the employer, when all is said and done, is in the best position to judge an employee's competence objectively.
[41] Accordingly, I conclude that the adjudicator did not commit any patently unreasonable error in her assessment of whether the dismissal was just and in her refusal to intervene. Furthermore, this conclusion of the adjudicator corresponds to the principles of objective assessment of a dismissal laid down by the Federal Court of Appeal.
[42] The applicant also argued that the adjudicator had to assess the scope of the decision in his regard made by the employer and satisfy herself that there was no possible option other than to dismiss him.
[43] On this point, I note in the adjudicator's decision that the employer proved that no other option was possible:
[Translation] The decision to dismiss Mr. Gauthier was made by Mr. Aiken. The witness suggested that Mr. Gauthier be transferred to Ottawa to be his assistant. However, no such position existed. In his view, the complainant could no longer remain in Montréal.
[44] I note that the adjudicator drew no conclusion in this regard, although it should be, as Marceau J.A. remarked in Hallé, supra, reproducing the comments by the adjudicator Hope. However, in view of the testimonial evidence, I see no ground for the Court's intervention, since this in no way alters the merits of the adjudicator's conclusion.
[45] I see no merit, either, in the applicant's submission that the adjudicator improperly put the onus on him to demonstrate his employer's bad faith. In fact, at no place in this decision does the adjudicator refer to the imposition of such an onus. Rather, I note that she attempts to satisfy herself that the dismissal is based on an objective, real and substantial cause, independent of caprice, convenience or purely personal disputes, entailing action taken exclusively to ensure the effective operation of the business, to repeat the words of Marceau J.A. in Hallé, supra.
CONCLUSION
[46] For all these reasons, this application for judicial review is dismissed.
OTTAWA, ONTARIO
September 6, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE: Michel Gauthier v. Ms. Diane Fortier |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: January 11, 2000 |
REASONS FOR ORDER OF LEMIEUX J.
DATED: September 6, 2000
APPEARANCES:
Rhéal Fortin FOR THE APPLICANT
Manon Savard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bissonnette et Fortin
Saint-Jérôme, Quebec FOR THE APPLICANT
Ogilvy, Renault
Montréal, Quebec FOR THE RESPONDENT
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