Docket: T-893-14
Citation:
2015 FC 98
Ottawa, Ontario, January 26, 2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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NANCY RENAE
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Applicant
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and
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CHAMP'S MUSHROOMS INC.
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
The applicant brings this judicial review application
to set aside the decision of Paul D.K. Fraser, QC (the Adjudicator), dismissing
the applicant’s complaint of unjust dismissal made under section 240 of the Canada
Labour Code, RSC 1985, c L-2 (the Code). For the reasons that
follow the application is dismissed.
II.
Facts
[2]
The applicant is Nancy Renae, a 53 year old
longhaul truck driver. She was employed by Champs Mushrooms Inc. (the
respondent) for 3½ years from July, 2009 until January 14, 2013 when she
alleges she was unjustly dismissed.
[3]
The respondent is a food growing and
distribution company located in Aldergrove, a community in the lower mainland
area of British Columbia. The company sells a variety of mushrooms both in
Canada and the United States. The applicant’s immediate supervisor was the
Transportation and Logistics Manager, Mr. Tri Quach. Mr. Quach was responsible
for setting drivers’ schedules and recording payroll. Mr. Paul Crosby,
controller for Champs was in charge of Human Resources. Mr. Crosby ultimately
reported to the Vice-President of the company Tony Vuu and the President Duke
Tran.
[4]
The first year of the applicant’s employment
with the respondent was uneventful; however during the remaining years the
relationship between the applicant and Mr. Quach deteriorated. As a result,
the parties have been involved in multiple proceedings from August, 2011
through to the applicant’s filing of the complaint at issue in this application
on January 30, 2013. As these events have been addressed through other
recourse mechanisms, the purpose of timeline below is to provide the necessary
context to the applicant’s dismissal.
1)
August 15, 2011 – The applicant filed a
complaint to HRSDC that the respondent failed to pay her wages and other
amounts [complaint investigated and dismissed].
2)
August 18, 2011 – The applicant damaged a case
of Portobello mushrooms. Mr Quach asked to meet with her and she refused to
meet without a witness present. After multiple text messages were exchanged the
applicant texted Mr. Quach on August 22, 2011 stating “pls
do not contact me on my off duty time anymore. This is considered harassment
and I will be calling the rcmp.”
3)
December 5, 2011 – The applicant filed a
complaint to HRSDC for unjust constructive dismissal [complaint adjudicated and
dismissed].
4)
January, 2012 – The applicant made a complaint
to the RCMP against Mr. Quach for allegedly threatening her [after conducting
interviews with the applicant and Mr. Quach the RCMP declined to investigate
the allegations].
5)
January 25, 2012 – The applicant filed a
complaint to HRSDC for unjust constructive dismissal [complaint adjudicated at
same time as complaint of December 5, 2012 and dismissed].
6)
May, 2012 – The applicant complained to the
Canadian Human Rights Commission that she was “being
discriminated against of because of her sex and harassed because of her sex”.
7)
May 24, 2012 – The applicant received a verbal
warning for failure to wear a hairnet on the loading dock.
8)
June 2012 – The applicant received a written
letter of reprimand for failure to wear a hairnet on the loading dock.
[5]
The applicant was dismissed for her refusal to
abide by the respondent’s delivery policies. The applicant was expected to
deliver mushrooms from Aldergrove, BC to the Seattle, Washington area three
times per week. Her truck was loaded for her and ready to leave Aldergrove at
approximately 10:00 p.m., although sometimes delays in loading would result in
a departure time of midnight or later. The estimated driving time to Seattle and
return was approximately 6½ hours, although with traffic and cargo unloading
factored in the total time could be considerably longer.
[6]
The cargo was loaded on the truck in the
sequence it was to be delivered to customers along her route. The deliveries were
expected to be made according to a load manifest that was created by the sales
department in order to meet the delivery times requested by various customers. The
load manifest was also provided to United States Customs, as entry inspection
procedure requires that the cargo be loaded in the exact order of delivery. Failure
to do so can result in a fine and potentially revocation of a United States
transport license.
[7]
The applicant delivered to a Seattle area
customer known as “Restaurant Depot”, which had one drop site in Seattle and another in Fife, Washington, approximately 15 to 30 minutes from Seattle. The scheduled delivery time to the Seattle Restaurant Depot was 6:00 a.m., while
the Fife delivery time was scheduled for 9:00 a.m. However, during the months
of November and December 2012, the applicant changed the order of delivery on
three occasions, delivering to the Fife location before the Seattle location.
[8]
On November 2, 2012, after the applicant changed
the drop order, Mr. Quach sent her a text message asking her not to change the
drop order again. He did not receive a response from the applicant.
[9]
On November 7, 2012, after the applicant again
changed the drop order, the respondent provide her with a written Record of
Disciplinary Action. This document was addressed to the applicant and stated
that “[r]uns are to never be changed without confirmation
from the Logistics Manager”, and listed “Immediate
Dismissal” as the sole consequence for failure to correct her behaviour.
Mr. Quach attempted to hand the written disciplinary warning to the applicant
but she did not accept the letter and walked away. The letter was then sent to
her home by registered mail but was returned undelivered.
[10]
The last unilateral change that the applicant
made to the drop order occurred on December 7, 2012. As a result she received
another Record of Disciplinary Action but refused to accept it.
[11]
On December 12, 2012, Mr. Quach approached the
applicant and provided her with her pay cheque. He again told her that she had
to stop changing the drop order. That same day the applicant received the load
manifest which included the following note in bold block letters:
*** DO NOT CHANGE MANIFEST ORDER ***
[12]
The applicant responded to this note by printing
on the document:
IF IT MEANS THAT I WILL NOT BE ABLE TO DO THIS
RUN IN THE ALLOTED 14 HRS. IT WILL BE CHANGED.
[13]
The applicant’s justification for writing this
statement was that she could not comply with the drop order because doing so
would result in her violating the “11/14 rule”. The “11/14 rule” is a
reference to the US Department of Transportation Hours-of-Service Regulations,
which provide that drivers can only drive for a total of 11 hours in an
operating run lasting no more than 14 hours before taking a 10 hour break.
[14]
I note, parenthetically, that there was no
evidence before the Adjudicator which supported Ms. Renae’s concern. Ms. Renea
had done the Aldergrove-Seattle route many times without approaching the
regulatory maximum. There was also evidence before the Adjudicator from other
drivers who had done the run, to the same effect. There is no issue whether
there were extenuating circumstances which justified a change in the drop
order.
[15]
To recapitulate, the adjudicator found that as
of December 11 2012, the applicant had made three changes to the drop order in
a five week period and indicated her intention to do so again if she considered
it necessary. Management attempted to arrange a meeting with the applicant,
but given the time of year, had difficulty in finding a time convenient to Ms.
Renae. The Adjudicator observed that:
In my view, she well knew how seriously Champs
management viewed her conduct. The best evidence of her understanding of the
situation was revealed when she testified that she wondered why it had taken
senior management 20 days to meet with her after the December 7th
incident. That meeting – like virtually all meetings Champs management tried
to arrange with her over the 17 month period referred to in paragraph 8 of this
decision – was, on the evidence before me, difficult to arrange. But it did
not occur on December 27th and was a key event in the dismissal
decision that was ultimately made.
[16]
On December 27, 2012, Mr. Quach, Mr. Crosby and
Mr. Vuu finally met with the applicant. At this meeting numerous issues were
discussed including food safety policy, the practice of requiring employees to
wear hairnets in the loading dock area in response to the applicant’s May and
June, 2012 discipline for failing to wear a hairnet, the applicant’s failure to
file a report following an incident when a pallet of mushrooms was damaged and
whether there were any extenuating circumstances as to why the applicant
continued to unilaterally change the delivery drop times. The meeting
concluded with no final disciplinary decision having been taken. The
applicant’s employment continued.
[17]
In early January, 2013, the applicant made two
runs to Seattle without incident. However, on January 11, 2013, Restaurant
Depot advised they were terminating its $800,000 contract with the respondent. After
receiving this news, the respondent made the decision to terminate the
applicant’s employment. The termination letter of January 14, 2013, cited the
following three reasons for just cause:
1. You did on several occasions change
the scheduled order of the Restaurant Depot drops for Seattle and Fife without
authorization and without informing the employer. You were clearly instructed
to discontinue this practice. You still continued to intentionally change the
drop order in direct contravention of your delivery schedule.
2. As a result of your actions Champ’s
received official complaints, incurred penalties and finally the customer,
Restaurant Depot, has terminated its contracts for both locations citing as its
reasons unacceptable late deliveries.
3. This represents a considerable loss
of business for the employer.
III.
The Decision Under Review
[18]
On March 13, 2014, the Adjudicator rendered his
decision, dismissing the applicant’s complaint and finding that her dismissal
was not unjust.
[19]
The Adjudicator reviewed the facts before
turning to a consideration of the relevant provisions in the Code and
the jurisprudence on unjust dismissal. The Adjudicator found that the
respondent’s policies with respect to the order of delivery drops and food
safety on the loading dock satisfied the tests of clarity, notice and
reasonableness: Wareham v United Grain Growers, [1985] CLAD No 88; Stein
v British Columbia (Housing Management Commission), (1992) 41 CCEL 213
(BCCA). The Adjudicator was also satisfied that the applicant was notified
that a breach of the policy could result in dismissal. The Adjudicator found
that the applicant was the only driver in the employ of Champs who did not
comply with the policy, that “it was a practice well
known by all drivers as essential to customer satisfaction, especially with
respect to Restaurant Depot and their Seattle outlet.”
[20]
Further, the Adjudicator found that the
applicant’s writing on the December 12, 2013 load manifest constituted a “culminating incident” from which the respondent was
entitled to impose further discipline. Specifically, the Adjudicator noted
this incident was a “legitimate final act of deliberate
misconduct.” The Adjudicator found the respondent had not condoned the
applicant’s behaviour and that the four weeks taken by the respondent to act
and to terminate the applicant was reasonable in the circumstances.
[21]
The Adjudicator concluded that the respondent
took a contextual approach in its investigation of misconduct and in its
determination of the appropriate sanction. That is, a contextual analysis of
the applicant’s misconduct demonstrated that dismissal was a proportionate
response by the respondent. Finally, the Adjudicator noted that the
applicant’s cumulative behaviour was such that the employment relationship
could no longer viably exist.
A.
The Adjudicator’s Decision was Unreasonable Because
he Relied on Facts that were not Tendered in Evidence or Argued by Either Party
[22]
The applicant argues that the Adjudicator’s
decision was unreasonable because the Adjudicator relied on a recitation of
facts that were not tendered in evidence or argued by either party and could
not reasonably been inferred. This argument pivots on the Adjudicator’s
characterization and findings in respect of the December 27, 2012 meeting.
[23]
The applicant contends that the purpose of the
December 27, 2012 meeting between the applicant and management was to identify
appropriate corrective discipline, and not, as the Adjudicator found, for the
respondent to continue to deliberate as to the appropriate form of discipline
to provide to the applicant. Corrective discipline was required because at
that time the respondent incorrectly believed that the applicant had continued
to change drop orders beyond December 7, 2012.
[24]
Further, the two members of the management team
who ultimately made the decision to dismiss the applicant, Mr. Tran and Mr.
Vuu, did not provide evidence in the proceedings. Accordingly, there is no
evidence from the ultimate decision-makers to contradict the inference that the
appropriate disciplinary response reached at the meeting was to put Ms Renae
under an on-going assessment of her performance. The applicant contends that the
only reasonable conclusion from the evidence is that the purpose of the meeting
was to give the applicant a warning and the opportunity to correct her
behaviour so that the respondent would not have to dismiss her.
[25]
The applicant submits that the Adjudicator made
his decision without considering that at the time of the December 27, 2012 meeting
and at the time of the applicant’s dismissal, the respondent incorrectly
believed the applicant continued to switch delivery orders. The respondent
therefore believed that the loss of the Restaurant Depot contract was the
result of the applicant having continued to switch her delivery orders through
January, 2013. The respondent therefore justified its decision to dismiss the
applicant on the basis of events which did not occur.
[26]
These three points centre around the characterization
of the December 27 meeting. Mr. Quach testified that the purpose was to take “corrective action” and that he wanted to give Ms. Renae
the opportunity to explain to senior management whether there were any
extenuating circumstances which justified her changes to the drop order.
[27]
In my view, the use of the term “corrective action” by
management does not render the overall characterization of the December 27 meeting
by the Adjudicator unreasonable. Mr. Quach’s e‑mails to the applicant of
December 19, 2012 and December 21, 2012 make clear the purpose and possible consequences
of the proposed meeting:
Your presence is requested to attend a
disciplinary meeting regarding several recent workplace violations. […] Failure
to appear may result in your indefinite suspension so I urge you to make
yourself available. [December 19, 2012)]
It would be best to address our concerns as we
would not want Champs to be seen as condoning the poor work performance and
allowing you to continue your work without the appropriate skill set or training.
As a reminder, your attendance is mandatory so please make yourself available.
[December 21, 2012]
[28]
Importantly, once agreement was finally reached
on the date for the meeting, Mr. Quach advised Ms. Renae that the meeting was
rescheduled to December 27, 2012 and informed her that “[p]ending
the outcome of your disciplinary meeting” she was still on her regular
schedule “for the time being.”
[29]
Viewed contextually, beginning with the November
7, December 7 and December 12 warnings, there can be no challenge to the Adjudicator’s
finding that dismissal was a potential outcome of the meeting.
[30]
The fact that the decision was taken, in the
end, by Mr. Tran and Mr. Vuu, who did not testify, does not undermine the
reasonableness of the finding. There was sufficient documentary and viva voce evidence before the Adjudicator
to support the conclusion that the parties had not agreed on a path forward at
the meeting, and that it concluded with Champs management’s need “to consider
next steps”. The Adjudicator found that there was no evidence that the parties
had reached “a common resolution of the issue.”
[31]
I turn to the third factual error, namely that
the Adjudicator ignored evidence that management was under the misapprehension
that the applicant had in fact changed the drop orders in January, 2013. On
this point, the Adjudicator is clear:
In early January, 2013, Ms. Renae made a couple
of trips to Seattle, apparently without incident. In the meantime, the Champs
management team were continuing to consider what discipline would be imposed
following upon the meeting that had occurred on December 27. Then, on January
11, in a phone call to the sales department, Restaurant Depot advised they were
terminating their contract with Champs, and “were getting another vendor.”
When Champs senior management received this
news, the decision was made to terminate Ms. Renae’s employment.
[32]
In support of her third argument the applicant
places considerable emphasis on the language of the January 14, 2013 dismissal
letter, which states, in part:
This letter represents formal notice that your
employment with Champ’s Mushrooms Inc. is terminated effective immediately
January 14, 2013 for just cause due to the following reason:
•
You did on several occasions change the schedule
order of the Restaurant Depot drops for Seattle and Fife without authorization
and without informing the employer. You were clearly instructed to discontinue
this practice. You still continued to intentionally change the drop order in
direct contravention of our delivery schedule.
[33]
I agree that this sentence admits of two
interpretations, including an interpretation which suggests that the applicant
had changed the drop order on her January, 2013 runs to Seattle, which she had
not. Another interpretation is that it refers to her change to the drop order
in December 2012, subsequent to written warning that this could result in
dismissal. It could also refer to the applicant’s written statement, on the
December 11, 2012 manifest that she would change the drop order if she saw fit.
[34]
The sentence is, perhaps, a somewhat awkward
conflation of the two thoughts, and infelicitously worded, but it is not
evidence that the employer was under a mistaken belief that the applicant had
changed the order in January 2013. There was no evidence of this before the
Adjudicator, and based on the management response and considerable documentation
generated on previous occasions when the applicant had changed the drop order,
it would have been reasonable to expect there would have been evidence of changes
to the drop order in January and of knowledge of the changes on the part of
management. There was no evidence of such misunderstanding on the part of
management before the Adjudicator.
B.
The Adjudicator’s Decision was Unreasonable Because
he Relied on a Culminating Incident not Cited by the Respondent as a Reason for
Dismissal
[35]
The applicant argues the Adjudicator
unreasonably relied on the applicant’s action of writing on the load manifest
on December 12, 2012 as a further incident worthy of discipline and a “culminating incident that justified reviewing her disciplinary
history during the entire course of her employment.” The applicant
urges that this is especially problematic given that the incident does not
appear anywhere in the respondent’s termination letter or the written responses
to the applicant’s unjust dismissal complaint. Mr. Crosby was not aware of this
incident and expressly stated that he had no knowledge of any actions by the
applicant warranting discipline after December 7, 2012, apart from the
cancellation of the Restaurant Depot contract.
[36]
The applicant argues that, generally speaking,
an employer will have difficulty justifying a termination of employment on the
basis of reasons not initially provided to an employee: Defence Construction
Canada Ltd. V Girard, [2005] FCJ No 1468 (FCC). That is, an employer “must justify its decision to dismiss for just cause on the
same grounds as it relied upon originally in its statement.”: Gould v
Aliant Telecom, [2002] CLAD No 498 (Canada Labour Arbitration). As the
employer did not specifically rely on the December 12, 2012 incident in its
reasons for dismissal, the Adjudicator’s decision was therefore unreasonable.
[37]
As discussed earlier, the letter is awkwardly
phrased, but, viewed in the context of the employment history, the
interpretation of it by the Adjudicator was reasonable – the applicant
demonstrated a continuing intention to change the drop order in contravention
of a clearly communicated management direction.
[38]
In assessing whether an employer has just cause
for dismissal, the court must consider whether the employee’s misconduct “gave rise to a breakdown in the employment relationship”:
McKinley v British Columbia Telephone, 2001 SCC 38. The courts must
evaluate the employee misconduct cumulatively as is required by a contextual
approach: McKinley; Poliquin v Devon Canada Corporation, 2009
ABCA 216. There is no question that the Adjudicator adopted the correct legal
framework.
[39]
Second, an employer has the right to determine
how its business will be conducted, including establishing policies and
procedures, so long as they are not contrary to law and within the range of
duties for which an employee has been hired. The employee cannot opine on the
wisdom of such policies and ignore them if he or she chooses: Stein at
217. However, before an employer can rely on the breach of a company policy as
just cause for dismissal, the employer must first establish that the policy was
distributed to employees; it was known to the employee affected; it was
unambiguous and consistently enforced; that employees were warned they will be
dismissed should they breach the policy; that the policy is reasonable and that
the breach is sufficiently serious to justify dismissal: Roney v Knowlton
Realty Ltd., 1995 CanLII 3132 (BC SC). The Adjudicator found that these criteria
were met.
[40]
The Adjudicator found that the applicant
repeatedly failed to follow workplace policies and instructions from
management. The applicant chose to be insubordinate in a confrontational
manner. The applicant refused to meet with management for disciplinary
meetings. Further, the load manifest, oral instructions and disciplinary
notices provided to the applicant were clear and unequivocal, and the applicant
expressed, in writing, her intention to disregard management direction when she
saw fit. Despite having been warned on November 7 that changes to the drop
order could result in dismissal, she subsequently changed the drop order.
[41]
With respect to condonation, the employer has a
reasonable amount of time to investigate the misconduct and consider its
options: Tracey v Swansea Construction Co Ltd., [1965] 1 OR 203. What
constitutes “reasonableness” depends on the circumstances of each case. In
this proceeding, the four week investigation period was a reasonable amount of
time given the previous difficulties the respondent experienced in meeting with
the applicant, and the intervening holidays. The Adjudicator’s finding that
the continued employment of the applicant from December 12, 2012 to January 14,
2013 was not condonation has a solid evidentiary foundation. The Adjudicator
carefully tracked the efforts of management to set up an early meeting with Ms.
Renae and her unavailability.
[42]
In sum, it is not a fair characterization of the
evidence to suggest, as the applicant has, that the incident on December 12,
2012 did not play a part in the deliberations to terminate the applicant’s
employment. Mr. Quach specifically testified that the applicant’s writing on
the load manifest that she would not comply with management’s instructions.
Some of the pertinent evidence before the Adjudicator in this regard as noted
in the respondent’s memoranda:
Both Mr. Quach and Mr. Crosby, however, gave
evidence that the management team, which they were both members of, considered
the Applicant’s entire history with the company. Mr. Quach stated that, during
management’s meetings about disciplining the applicant, he opined that the
applicant was “continuing to disobey… the order she had been given”.
Mr Quach also stated that, when asked by the
management team whether he thought they should dismiss the applicant, he told
the rest of the management team that he thought the applicant would continue to
be a “rogue employee” based on her “past history… and the constant problems
we’ve had and the inability to communicate or provide any type of training or
corrective behaviour”. He went on to state that the decision to terminate the
applicant’s employment was made “after careful consideration with the entire
management team”.
[43]
The evidence of Mr. Quach was that the
management team considered the applicant’s entire history with the company in
deciding whether to terminate the applicant’s employment. This history
includes multiple complaints filed by the applicant to various agencies,
including HRSDC, the Canadian Human Rights Commission, the Worker’s
Compensation Board, and the Royal Canadian Mounted Police. This history also
includes the applicant’s previous suspension from work, the result of an
incident involving the loss of product. Numerous attempts were made to meet
with the applicant after this incident and the applicant would either not
communicate with the respondent or would refuse to meet.
IV.
The Standard of Review is Reasonableness
[44]
The appropriate standard of review in a judicial
review of an adjudicator’s decision on an unjust dismissal complaint is
reasonableness: Payne v Bank of Montreal, 2013 FCA 33. Although
reasonableness is a deferential standard of review, this does not mean that
decisions of adjudicators are immune from review. The decision must be
justifiable, transparent and intelligible and fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9. For the
reasons given, the decision meets this standard.
[45]
A review of dismissal decisions must be taken in
the framework developed by the Supreme Court of Canada in McKinley. In McKinley,
at para 57, Justice Iacobucci indicated that a reviewing court is to employ “an analytical framework that examines each case on its own
particular facts and circumstances, and considers the nature and seriousness of
the dishonesty in order to assess whether it is reconcilable with sustaining
the employment relationship.”
[46]
The Adjudicator properly examined the
applicant’s conduct as a whole. This is especially important where the events
in question are closely linked in time and substance. The applicant’s
insubordination was closely linked in time and in fact was substantive. As the
Adjudicator properly stated, the applicant’s insubordination had “crystallized into defiance.” As such, an employment
relationship was unsustainable and resulted in serious prejudice to the
respondent’s business.
[47]
When assessing the proportionality of an
employer’s reaction to an employee’s misconduct, the Adjudicator is entitled to
take into account the cumulative effect of an employee’s record in determining
whether his or her dismissal was justified: Poliquin at para 73. In
this case, the applicant repeatedly failed to follow workplace policies
regarding drop orders and clear instructions from her supervisors. The
applicant argues that these policies were guidelines and not mandatory per se; however, it is clear that
management did not see it that way, and had notified her that a policy breach
may result in immediate dismissal.
V.
Conclusion
[48]
In sum, the Adjudicator’s finding with respect
to condonation, the cumulative incident and the appropriateness of the response
all have an evidentiary foundation, and the conclusions and inferences that he
drew from the evidence before him were reasonable and do not justify
intervention.
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