Kahnawake Shakotiia' Takehnhas Community Services v. Miller, docket T-1728-96

     T-1728-96

BETWEEN:

     KAHNAWAKE SHAKOTIIA3 TAKEHNHAS

     COMMUNITY SERVICES,

     Applicant,

     - and -

     SANDRA JEAN MILLER,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

     This application for judicial review attacks the decision of M^e Denis G. Simard dated June 14, 1996, as an adjudicator ("the adjudicator") under the Canada Labour Code ("the Code"). The adjudicator maintained the complaint of unjust dismissal of the respondent, ordered the applicant to re-instate her in her position retroactively to April 21, 1995, and retained his jurisdiction to determine the quantum of damage in the event that the parties failed to reach agreement on that question. The grounds of the application are that the adjudicator exceeded his jurisdiction and made an award which was patently unreasonable.

1- The facts

     The applicant is essentially a provider of health and social services to the Mohawk Community of Kahnawake. The respondent was hired in September 1992 as a "social worker" at an initial salary of $26,000 which applied during her six month probationary period. There was no written employment contract. It is the view of the respondent that she would be paid a competitive salary and that once the wage parity study being undertaken by the applicant was completed, her salary would be retroactive to the first day of her appointment.

     At the end of her probationary period, she was granted permanent employment status and was awarded a salary of $35,549 per year, the whole pursuant to a SWI-VII classification. In October 1995, the applicant realized that it made a mistake and that the respondent was not entitled to a SWI-VII classification because she did not hold a Bachelor of Social Work degree and therefore was not eligible for membership in the Corporation Professionnelle des Travailleurs Sociaux du Québec. The applicant discovered that the correct classification for the respondent ought to have been WP2-VIII.

     The respondent did not accept that reclassification and availed herself of the internal review procedure to appeal her case to an ad-hoc committee of the applicant's Board of Directors. By letter dated January 12, 1996, the ad-hoc committee maintained the decision of the applicant to reclassify the respondent and to deny her claim for retroactive salary.

     The respondent refused to accept that decision, retained legal counsel and eventually filed a complaint pursuant to the provisions of the Code (Division XIV, sections 240 and following) which gave rise to the adjudicator's decision now being challenged under this judicial review.

2- The adjudicator's decision

     Both parties were represented by counsel before the adjudicator and the hearing lasted six days. As a threshold decision, the adjudicator had to find whether the respondent had resigned or was dismissed by the applicant. He applied seven criteria emanating from the jurisprudence in the matter and came to the conclusion that the respondent was a victim of a constructive dismissal. He said as follows, at page 17 of his decision:

Dans le cas d'espèce qui nous occupe, la preuve a révélé que le départ de Dame Sandra Jean Miller ne répond pas aux sept (7) éléments constitutifs d'une démission tel que développé par l'abondante jurisprudence arbitrale.

De plus, le comportement de l'employeur a établi un bris unilatéral du contrat individuel de travail de Dame Sandra Jean Miller.

L'arbitre considère donc qu'il est en présence d'un congédiement déguisé et qu'il a compétence pour statuer sur le cas d'espèce.

     The adjudicator then found that the respondent was the victim of an unjust dismissal. The ratio decidendi of that decision is to be found at page 18:

Dame Sandra Jean Miller a été congédiée sur la base d'un conflit sur le mode de rémunération globable assortie d'un quiproquo indescriptible sur la classification des postes au sein de K.C.S.S. Dès son embauche et jusqu'à son congédiement, des modifications substantielles et successives des conditions de travail de Dame Sandra Jean Miller se sont produites. L'employeur a admis avoir commis des erreurs. Des négociations infructueuses sur la validité des promesses à tenir et à l'échec des parties à bien assimiler les classifications de postes au sein de K.C.S.S. ont bousculé les relations de travail au point de dégénérescence qui a mené à l'émergence de conflits de personnalité et finalement au congédiement de la plaignante.

Dame Sandra Jean Miller a été victime d'une fausse conception systémique des relations de travail.

L'employeur est donc responsable de la rupture du contrat individuel de travail.

La preuve a démontré que la plaignante est réhabilitable et qu'en aucun moment durant l'enquête et l'audition, la compétence de Dame Sandra Jean Miller n'a été attaquée par l'employeur. La gravité du comportement de Dame Sandra Jean Miller ne peut être mesurée, vu l'absence d'une preuve convaincante à cet égard. Comme c'est le cas dans la plupart des contrats individuels de travail, il n'est pas nécessaire qu'il soit écrit pour être valide. En pratique, la grande majorité des contrats individuels de travail ne se retrouvent pas sous la forme écrite. En conséquence, il est quelque fois fort difficile de déterminer le contenu d'un contrat individuel de travail.

J'en viens donc à la conclusion que Dame Sandra Jean Miller a été congédiée injustement.

     It is also worthy of note that the adjudicator relied heavily on a letter dated April 20, 1995, addressed by the applicant to counsel for the respondent. The first two paragraphs of the letter read as follows:

We have your letter of April 13, 1995 advising that Ms. Miller refuses to accept our client's position that her correct job classification is that of "Welfare Programmer". Accordingly, as we advised in our letter of 05 Onerahtokha/April, 1995, this refusal is considered by our client to be Ms. Miller's resignation of her position. The Board of Directors accepts this resignation, to be effective 12 Onerahtokha/April 1995 at 4:30 p.m.

In the alternative, given that the Board of Directors and Ms Miller disagree on this fundamental aspect of Ms. Miller's employment status, it is impossible to continue the relationship and Ms. Miller's employment is terminated, effective 21 Onerahtokha/April, 1995 at 4:30 p.m.

(my emphasis)

3- The law and the jurisprudence

     Section 243 of the Code provides for a privative clause which reads as follows:

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.

     It is trite law that the presence of a privative clause discloses the legislative intention to restrict judicial review of the administrative tribunal¹. The privative clause, however, is not a full proof shield which would protect the tribunal from all attacks on its decisions. Obviously, a tribunal may only act within its own jurisdiction and within its jurisdiction it may not pronounce decisions which are patently unreasonable. Pursuant to section 240 of the Code, a person may file a complaint if he (or she) has been dismissed and considers the dismissal to be unjust. That person may not invoke section 240 if she has not been dismissed by her employer but has resigned of her own volition.

     I accept the assertion of the applicant to the effect that the standard developped by the jurisprudence in reviewing the decision of an administrative tribunal to accept jurisdiction is that the decision in question must be "correct". The test "patently unreasonable", which applies to the factual conclusions of the tribunal, comes into play only once the jurisdiction of the tribunal has been correctly determined².

     The Code does not provide a definition of what may constitute a dismissal, but generally the jurisprudence has established that a dismissal refers to "an act or decision of an employer that has the effect of terminating a contract of employment"³. Basically, the tribunal must appreciate the facts and find whether or not the employer has terminated a contract of employment or whether the employee has resigned.

4- Analysis

     The evidence tendered before the adjudicator showed that, following the discovery of its own error, the applicant unilaterally modified the respondent's working conditions and that, while the respondent tried to negotiate and settle the issue with her employer, the latter gave her an ultimatum: either you accept the new working conditions or you will be fired.

     The relations between the employer and its employee deteriorated to the point that the employer wrote the aforementioned letter of April 20, 1995, to the effect that, since the applicant and the respondent disagree "on this fundamental aspect of Ms. Miller's employment status, it is impossible to continue the relationship and Ms. Miller's employment is terminated, effective 21 Onerahtokha/April, 1995 at 4:30 p.m.".

     I cannot find that the tribunal was incorrect in its interpretation of the facts and in finding that the dismissal in question was within its jurisdiction.

     Neither can I find that the adjudicator was patently unreasonable in its conclusion that the respondent was unjustly dismissed. It is common ground that the respondent was competent. The only reason why she was dismissed was because she refused to accept the change of classification imposed upon her by her employer.

     She was entitled, pursuant to section 240 of the Code, to file a complaint if she considered her dismissal to be unjust. That section also covers cases of constructive dismissals⁴. A constructive dismissal occurs when an employer unilateraly alters an employee's working conditions or uses any other means to force the employee's resignation.

     The evidence adduced by the respondent showed that at the time of her hiring she was promised a starting salary that would be competitive, but her salary was in fact about $9,000 below the competition in her field. From the starting date of her employment on September 16, 1992, to April 5, 1995, she never received a salary increase. On that date, the applicant decided to reclassify her and informed her that her tasks and responsibilities would essentially remain the same. While trying to negotiate the issue through attorneys, she received the letter of April 20, 1995, above referred to.

     The adjudicator's conclusion that the respondent was unjustly dismissed was not patently unreasonable.

     The adjudicator also ordered payment of retroactive benefits to the respondent. The applicant submits that retroctive salary ought not to have been awarded since the respondent failed to attempt to mitigate the damages. However, the evidence presented before the adjudicator shows that from the very day of her dismissal up to the date of the hearing, the respondent did undertake an extentive job search but was unsuccessful. Moreover, if the respondent had remained in the employment of the applicant, she would have been barred from filing a complaint pursuant to section 243 of the Code: she would have been deemed to have accepted the reclassification imposed upon her and could not claim to have been unjustly dismissed. In any event, the duty to mitigate is an issue for the quantum hearing.

     The adjudicator also ordered the re-instatement of the respondent. The applicant argues that the re-instatement order was patently unreasonable on the grounds that there was no finding that the position still existed and that the order was worded in vague and unenforceable terms.

     However, the transcript of the evidence before the arbitrator shows that the position still existed. The only ambiguity that may be found in the order is in the sense that the adjudicator did not specify what salary ought to be paid to her. But the adjudicator reserved his jurisdiction to dispose of the matter and on January 21, 1997, issued a decision on the quantum of damage and the salary payable to the respondent. The applicant claims that the adjudicator's reservation of his jurisdiction to deal with the quantum was patently unreasonable. In my view, the adjudicator was entitled to reserve his decision with reference to the quantum.

     Again, faced with the section 243 privative clause, it is not for the Court to decide whether or not it would have come to a different conclusion or to impose its own decision. As the arbitrator acted within his jurisdiction under the Code and was not patently unreasonable in the exercise of his discretion, the Court cannot intervene.

     Consequently, this application for judicial review is dismissed.

O T T A W A

February 12, 1997

    

     Judge

__________________

¹      See Ross v. School District no. 15, [1996] 1 R.C.S. 825, at p. 848.

²[1984] 2 S.C.R. 412">      Syndicat des employés de production du Québec v. CLRB, [1984] 2 S.C.R. 412; Sedpex Inc. v. Browne and Devereaux (1988), 25 F.T.R. 3; Eskasoni School Board et al. v. MacIsaac et al. (1986), 69 N.R. 315 (F.C.A.) and Beothuk Data Systems Ltd., Seawatch Division v. Dean et al. (1995), 102 F.T.R. 214.

³      Eskasoni School Board, supra, no. 2.

⁴      Srougi v. Lufthansa German Airlines (1988), 93 N.R. 244.