Docket: T-1538-13
Citation: 2014 FC 426
Toronto, Ontario, May 6, 2014
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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WAYNE SKINNER
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Applicant
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and
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FEDEX GROUND LTD.
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Respondent
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ORDER AND REASONS
[1]
The present Application concerns a challenge by
the Applicant, a past employee of the Respondent, who seeks to set aside the
decision of an Adjudicator, dated August 19, 2013, in which the Adjudicator
dismissed the Applicant’s unjust dismissal complaint against the Respondent
pursuant to s. 240 of the Canada Labour Code, RSC, 1985 c. L-2 (the Code).
I.
Background Leading to the Dismissal
[2]
The Applicant worked for the Respondent from
September 6, 2005, until June 1, 2012, when he was terminated for just cause. At
the time of the termination the Applicant held the position of “Senior Customs
Associate”. The Applicant’s work record discloses chronic inability to arrive
at work on time. As a result, on December 16, 2011, the Respondent gave the
Applicant a “pre-final warning” that “any further tardiness...will result in a
final written warning [and] [a]ny subsequent tardiness after that will result
in termination”. Following the Applicant arriving late for work on February 16,
2012, on February 21st a “final warning” was given that “this is a
final written warning and any subsequent violations will result in termination
of your employment” (Adjudicator’s Decision, pp. 3 – 4).
[3]
To record the time that an employee arrives at
his or her work station, the Respondent implemented an “eTime” honour recording
system. The Applicant was required to be physically present at his work station
each work day at 8:30 am and to accurately record his arrival time at the work
station. The culminating event leading to the Applicant’s termination occurred
on May 25, 2012, when he arrived and signed in at the security area at 8:30 am,
but did not arrive at his workstation until 8:34 am. After the Applicant
arrived at his workstation he recorded his arrival time in the eTime system as
8:30 am. The Applicant’s late arrival and his dishonest misconduct grounded his
dismissal for just cause.
II.
The Adjudicator’s Decision
[4]
On June 15, 2012, the Applicant filed an Unjust
Dismissal Complaint which resulted in a hearing by an Adjudicator over the
course of two days, May 8, 2013, and July 10, 2013. On August 19, 2013, the
Adjudicator dismissed the Applicant’s complaint for the following reasons:
The employer has made multiple efforts, over a
protracted period, to manage and help Mr. Skinner to overcome his pattern of
habitual tardiness. Numerous times at his request, the employer adjusted his
schedule in an effort to maximize the likelihood of on-time attendance. But,
while Mr. Skinner did make some improvement, the problem was not resolved.
Still, Mr. Skinner was given a final chance, which was clearly identified as
such at the time. And, even if a four-minute late arrival might, in and of
itself, be seen as an offence approaching the trivial, Mr. Skinner had a
significant problematic history. And on May 25, not only was he late once more,
but he also opened an entirely new front-dishonest misconduct.
In this context, I am satisfied that the complainant’s dismissal was
just and that this complaint must therefore be dismissed.
(Decision, pages 17 and 18)
III.
Arguments and Findings
[5]
It is agreed that the appropriate standard of
review for cases of unjust dismissal under the Code is reasonableness
and the appropriate standard of review for issues of procedural fairness is
correctness.
[6]
The Applicant challenges the decision under
review on three distinct grounds: a reasonable apprehension of bias on the part
of the Adjudicator; the Adjudicator’s failure to perform a two-step inquiry to
determine if just cause existed for dismissal; and a breach of the duty of
fairness owed.
A. Apprehension of Bias
[7]
The Applicant argues that “the Adjudicator
created a reasonable apprehension of bias in the mind of the Applicant on more
than one occasion as a result of both his comments and his actions during the
course of the proceedings” (Applicant’s Argument, para. 55). The test for a
reasonable apprehension of bias is stated by the Supreme Court of Canada in R
v. R.D.S., [1997] 3 S.C.R. 484 at paragraph 111 as follows:
The manner in which the test for bias should be
applied was set out with great clarity by de Grandpré J. in his dissenting
reasons in Committee for Justice and Liberty v. National Energy Board,
[1978] 1 S.C.R. 369, at p. 394:
[T]he apprehension of bias must be a
reasonable one, held by reasonable and right-minded persons, applying
themselves to the question and obtaining thereon the required information. . .
. [The] test is “what would an informed person, viewing the matter
realistically and practically -- and having thought the matter through --
conclude. . . .”
[8]
Prior to the hearing of the Applicant’s
complaint, the Adjudicator engaged in an attempt to mediate the complaint with
the agreement of the Applicant, who was unrepresented, and Counsel for the
Respondent. During the course of the hearing of the present Application, Counsel
for the Respondent confirmed that, with respect to wrongful dismissal
complaints under the Code, it is an established and accepted practice
that adjudicators attempt to reach a mediated settlement before hearing and
deciding a particular complaint. While the Adjudicator makes no mention of the
conduct of the mediation in the decision rendered, the Applicant in his
affidavit provides the following evidence in support of the apprehension of bias
argument:
During our private discussions [the Adjudicator]
Mr. Herlich shared with me his view that based on what he had seen of my
complaint so far, the fact that I had been disciplined on several occasions
suggested that my case was not very strong (Paragraph 6).
Further during our private discussions and in reference
to my stated intention of claiming damages for reasonable notice, Mr. Herlich
felt obliged to share with my wife and me his recollection of watching a
certain television cartoon in his childhood. Mr. Herlich recalled that at the
beginning of many episodes of that particular cartoon the main character would
be contemplating a plan for acquiring money. The money to be acquired on the
successful execution of the plan would be represented by the image of a bag of
money in the top comer of the television screen. Mr. Herlich ended his
recollection of watching the television cartoon by stating that at the end of
the episode the cartoon character's plan to acquire money would inevitably fail
and that the image of the bag of money would disappear with a "poof "
(Paragraph 7).
In addition to the details recounted in
Paragraphs 6 of the Applicant’s affidavit, in the Applicant’s Memorandum of
Fact and Law the Applicant provided the following clarifying statement:
During the course of these private
discussions the Applicant asked the Adjudicator for his opinion on the merits
of his complaint. The Adjudicator replied by saying
that based on what he had seen of the complaint so far, the fact that the
Applicant had been disciplined on several occasions suggested that the
Applicant's case was not very strong (Paragraph 63).
[Emphasis added]
[9]
Upon applying the test, I find that no
apprehension of bias arises from the incidents recounted by the Applicant. The
Adjudicator’s use of allegory and frank opinion regarding the Applicant’s
chances of success were clearly directed at assisting the Applicant to
understand that a realistic risk existed in taking the complaint to hearing. In
my view, the Adjudicator’s attempt to assist the Applicant was very much in
keeping with what might be reasonably expected of a competent mediator.
[10]
In paragraph 34 of this Affidavit, the Applicant
recounts one further incident that preceded the hearing which is also advanced
to support the apprehension of bias argument:
Based on my understanding of the HRSDC's Guide
to an Adjudication Hearing, I sent an email to Mr. Herlich dated May 10, 2013
requesting the issuance of subpoenas to six potential witnesses. To my
surprise, in his reply dated May 13, 2013 Mr. Herlich advised me that it was
not his practice to prepare summonses for parties and that I should not be
seeking legal advice from him. See Exhibit "A".
In my opinion, this allegation is frivolous
and is of no evidentiary value on the issue.
B. Two-Step Inquiry Process
[11]
The Applicant argues that the Adjudicator failed
to follow the two-step inquiry for assessing just cause for dismissal without
notice, as established by the Supreme Court of Canada in McKinley v. BC Tel (2001
SCC 38). Under this two-step inquiry, the Adjudicator was required to first
find whether the conduct relied on as the basis for dismissal has been
established on a balance of probabilities, and then find whether the nature and
degree of such conduct warrants dismissal in the specific context of the case,
having regard to all the circumstances. The Applicant argues that the
Adjudicator erred by failing to conduct the first step of the inquiry.
[12]
I do not accept the Applicant’s argument because
it is clear from the record that the Adjudicator did complete the first step; the
uncontested evidence with respect to the Applicant’s disciplinary history,
including his admission that on May 25, 2012, he arrived at his workstation at
8:34 am, but recorded his arrival time as 8:30am, accomplished this requirement.
C. Procedural Fairness
[13]
Finally, the Applicant argues that the
Adjudicator denied him the right to a fair hearing by refusing to allow him to
make certain submissions during his closing argument on certain issues: the
difference between culpable vs. non-culpable incidences of arriving late for
work; the fact that the Applicant thought that the Respondent was targeting
him; and the difference between guaranteed as opposed to non-guaranteed
delivery time services offered by the Respondent (Applicant’s Memorandum of
Fact and Law, paras. 75 – 85). As explained at paragraph 78 of the Applicant’s
Memorandum, the Adjudicator placed the limit on the first and second instances
for the reason that the Applicant should have raised the issues during the
evidence stage of the hearing.
[14]
There is no issue that it was within the
Adjudicator’s discretion to decide questions of hearing procedure and relevance
with respect to evidence giving and argument. In my opinion, given the focussed
grounds for the Applicant’s dismissal, being his undisputed chronic inability
to arrive at work on time, the Adjudicator acted well within his discretion to
limit argument to only relevant issues raised on the evidence presented. By way
of explanation for doing so, the Adjudicator commented as follows:
I should note as well that the complainant's
lack of legal training was not a significant obstacle to his effective
participation in these proceedings. Mr. Skinner struck me as highly
intelligent, possessed of an impressive range of social skills. He was also
utterly tenacious in his presentation. He did, however, fail to completely
understand the distinction between evidence and legal argument. Much of his
testimony included the latter. And despite my explicit caution during his
testimony that he insure that all of the facts he intended to rely upon be put
in evidence, his final argument included the presentation or assertion of facts
that were not in evidence.
[…]
Ultimately, however, I am satisfied that even
accepting the otherwise unproven facts asserted in final argument as true,
those facts have no significant impact on the disposition of the matter.
(Decision, p. 6)
[15]
I find no breach of the duty of fairness owed to
the Applicant.
IV.
Conclusion
[16]
I find that the Adjudicator’s decision is
reasonable.
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