Date: 20000908
Docket: T-1563-99
BETWEEN:
ROGERS CABLESYSTEMS LIMITED
Applicant
- and -
PAM ROE
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Pam Roe, the respondent in this proceeding, is a former employee of Rogers Cablesystems Limited ("Rogers"). Her employment with Rogers as a part-time Data Control Clerk was terminated on May 30, 1998. As a result of the termination of her employment, Ms. Roe filed a complaint with Human Resources Development Canada. Her complaint went to a hearing before an adjudicator appointed pursuant to the provisions of section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended ("Code").
[2] The adjudicator concluded that at the time Ms. Roe's employment was terminated, Rogers was conducting a legitimate reorganization so that the company was entitled to terminate part-time Data Control Clerks. He found, however, that other considerations played a part in the selection of Ms. Roe for termination. The adjudicator further determined that those considerations were not disclosed to Ms. Roe and that such an omission constituted a failure to conform to the standard of procedural fairness inherent in the just cause concept under the Code.
[3] In consequence, the adjudicator awarded Ms. Roe three quarters of the legal fees reasonably incurred by her in connection with the hearing, and all reasonable disbursements and expenses. The amount owing as a result of that award is estimated to be $53,000.
[4] Rogers now brings this application for judicial review of the adjudicator's decision.
THE FACTS
[5] Ms. Roe first began to work for Rogers in 1979. Her position was terminated in 1991 when the retail centre where she worked was closed. She was paid severance. She was again recruited by Rogers in 1992 and worked with the company as a Collections Representative. In 1994, Rogers reorganized its collection operations, transferring all but two positions from Vancouver to Toronto. Ms. Roe was again terminated and paid severance. Ms. Roe did not dispute either termination.
[6] Ms. Roe began her third period of employment with Rogers in collections. She was appointed a part-time Data Control Clerk on February 8, 1995. She was engaged in a special project in April 1995 and in November 1996, she was reassigned to normal Data Control Clerk duties. Ms. Roe stated that the reassignment corresponded with certain electronic messages she was sending to the management in response to a corporate initiative called "Project Compete@.
[7] Apparently, throughout 1997, Ms. Roe continued to send extensive e-mail messages and was, on one occasion in July 1997, informed by her supervisor that she should be more focussed on her primary responsibilities as a Clerk and more economical with her e-mail communications. Nevertheless, in the ensuing months, Ms. Roe continued to forward e-mail messages, some of which were long and detailed, directly to senior managers, including the then President and CEO of Rogers.
[8] In 1997, Rogers decided to transfer what was left of the collections functions from Vancouver to Toronto. Rogers' Manager of Human Resources, Ms. Marilyn Tyfting, testified that in the event of a necessary reduction of staff, it was Rogers' practice to protect longer serving full-time employees. That was done in the present case, and two long serving full-time employees accepted offers of employment in the newly created positions of Work Order Control Clerks. As a result, three part-time Data Control Clerks were to be terminated.
[9] Ms. Roe was among the three employees terminated. At the time of her termination, there were five junior part-time Data Control Clerks whose relative lengths of service were not significantly different. All were recruited in 1995 or 1996. The adjudicator found that Rogers chose not to terminate two of its junior clerks who had acquired positions with the company after Ms. Roe was hired in 1995.
[10] The letter of termination Ms. Roe received was dated January 20, 1998. It advised Ms. Roe that her termination was necessitated "due to a department re-organization". After a number of meetings with the management regarding the reasons for her termination, including an inquiry to the most senior manager of Rogers for B.C., Ms. Roe was not persuaded that she was given the full explanation for her termination. Ms. Roe testified that she was devastated by the loss of her employment, suffered from depression and entered counselling.
[11] On June 17, 1998, pursuant to subsection 241(1) of the Code, Ms. Roe requested that Rogers provide her with the reasons for her termination. Rogers replied that Ms. Roe's "position was eliminated due to restructuring".
[12] On August 4, 1998, Ms. Roe lodged a complaint under subsection 240(1) of the Code with Human Resources Development Canada. In her complaint, Ms. Roe alleged that the functions she performed had not been discontinued and were still being carried out by other employees of Rogers. She stated that the actual reason for her termination was unknown to her.
[13] An adjudicator was appointed on January 8, 1999 to deal with Ms. Roe's complaint of unjust dismissal and the hearing, which lasted for 8 days, commenced on March 15, 1999. Before the adjudicator, Ms. Roe maintained that she was unjustly dismissed, and requested reinstatement.
[14] As previously noted, the adjudicator concluded that the Rogers' reorganization was legitimate, and that while the company was entitled to terminate its part-time Data Control Clerks, there were other considerations that entered into the selection of Ms. Roe for termination. Those considerations were found to be valid, and the adjudicator also noted that Rogers had not acted in a manner that was arbitrary, discriminatory, or in bad faith. However, the adjudicator determined that those considerations were not disclosed to Ms. Roe.
[15] An employee of Rogers testified before the adjudicator that Rogers chose to preserve the jobs of its full-time employees over its part-time employees, and that when it came to selecting which part-time employees should be let go, Rogers limited its choice to a cluster of part-time employees with 1995 and 1996 start dates. Ultimately, Ms. Roe was chosen as one of the employees to be terminated because she was more "high maintenance" than other employees in that cluster.
[16] The adjudicator determined that Roger's failure to advise Ms. Roe of the considerations which entered into the decision to terminate her employment constituted a failure to conform to the standard of procedural fairness which is inherent in the just cause concept under Part III, Division XIV of the Code. The adjudicator further found that the omission forced Ms. Roe to pursue her complaint to a hearing in order to obtain a full explanation of the reasons for her termination. The adjudicator, therefore, concluded that the appropriate remedy was compensation for three quarters of the costs Ms. Roe incurred in pursuing her complaint.
[17] The costs, of approximately $53,000, were said by Rogers to be equivalent to about 22 months' salary of Ms. Roe.
ISSUES
[18] Rogers raised two issues with respect to the adjudicator's decision:
| 1. Whether the adjudicator exceeded his jurisdiction in concluding that the actual operative and dominant reason for the termination of Ms. Roe was not a lack of work or the discontinuance of a function; and |
| 2. Whether the adjudicator based his decision on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the material before him, particularly that he erred in finding that: |
| a. Rogers took advantage of otherwise legitimate business reasons to terminate Ms. Roe and that the discontinuance of a function was not the actual operative and dominant reason for the termination; and |
| b. Ms. Roe had not been informed of the real reason for her termination prior to the hearing. |
ANALYSIS
(i) Legislative framework
[19] The provisions of the Code relevant to this application for judicial review are subsection 241(1) and sections 242 and 243. Those provisions are as follows:
| 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. ... 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). 242(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). 242(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. 242(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. 242(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. 243(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. |
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. |
|
... 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. 242(2) Pour l'examen du cas don't 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). 242(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. 242(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. 242(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. 243(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. |
(ii) Standard of review
[20] Of importance is the fact that section 243 of the Code contains a privative clause applicable to the adjudicator's decision now before the Court.
[21] It is trite law that the existence of a privative clause attracts judicial deference. A privative clause is reflective of Parliament's intent that the Court not substitute its view for that of the adjudicator.
[22] Notwithstanding the principle noted above, it is also well established that issues of jurisdiction may properly be subject to judicial review. Jurisdictional errors have been held to include reaching a decision without regard to the relevant material before the adjudicator. (see: Sepdex, Inc. v. Browne (1988), 34 Admin. L.R. 23 (F.C.T.D.)).
[23] On this application for judicial review, I accept the submission of Ms. Roe's counsel that, in considering whether the adjudicator made findings of fact without regard to the material before him, the standard of review is patent unreasonableness. In determining whether the adjudicator had jurisdiction to proceed with the complaint, the standard of review is correctness. (see: Sepdex, supra).
(iii) Did the adjudicator err in concluding that the actual operative and dominant reason for the termination was not lack of work or the discontinuance of a function?
[24] Rogers submitted that the adjudicator erred in two respects in reaching his conclusion that the actual operative and dominant reason for the termination was not lack of work, or the discontinuance of a function.
[25] First, Rogers stated that the adjudicator exceeded his jurisdiction in reaching this conclusion. Rogers pointed to the adjudicator's finding that the staff reduction resulted from a genuine reorganization of business; that Rogers was entitled to terminate part-time Data Control Clerks due to lack of work; and that Rogers chose to terminate Ms. Roe in a fashion that was not arbitrary, discriminatory or unreasonable. Rogers asserted that once those findings were made the adjudicator lost jurisdiction because, pursuant to paragraph 242(3.1)(a) of the Code, an adjudicator cannot consider a complaint where the complainant has been laid off due to lack of work. It was common ground before me that the term "laid off" encompasses a blameless termination, such as Rogers' termination of Ms. Roe.
[26] In the alternative, Rogers said that if the adjudicator did have jurisdiction, his conclusion as to the actual operative and dominant reason for termination was made without regard to the material before him.
(a) The alleged jurisdictional error
[27] Ms. Roe asserted that the adjudicator made no jurisdictional error. She noted, correctly, that an adjudicator is not bound by an employer's assertion that an employee was laid off for reasons which fall within paragraph 242(3.1)(a), and that the adjudicator must examine the merits of the employer's assertion. As Strayer, J., as he then was, stated in Sepdex, supra, "the question which the statute requires to be answered, in my view, is as to whether the actual operative and dominant reason for the termination was `lack of work'". See also, Wolf Lake First Nation v. Young (1997), 130 F.T.R.115 (T.D.).
[28] Ms. Roe then noted, I believe again correctly, that a termination for "mixed motives" constitutes an unjust dismissal. The term "mixed motives" denotes a termination partly attributable to lack of work or discontinuance of a function, and partly attributable to disciplinary reasons. A termination for mixed motives has been held not to fall within paragraph 242(3.1)(a) of the Code. See: Saunders v. Coles Express (unreported, 6 February 1987, Landry, Adj.).
[29] Finally, Ms. Roe pointed to the adjudicator's finding that "neither lack of work nor discontinuance of a function was the actual and dominant reason for Ms. Roe's termination" and his conclusion that "the Employer took advantage of the otherwise legitimate reasons for a lay-off to dispose of the Complainant [Ms. Roe]".
[30] In considering whether the adjudicator acted in excess of his jurisdiction, I begin by noting the policy reflected in paragraph 242(3.1)(a) of the Code.
[31] The policy underlying the provision is that an employer is best placed to determine how to organize the employer's business. Paragraph 242(3.1)(a) precludes an adjudicator from interfering with the employer's reactions to changing conditions. In consequence, as noted by Muldoon, J. in Air Canada v. Davis (1994), 72 F.T.R. 283 (T.D.), paragraph 242(3.1)(a) recognizes that in some circumstances a blameless employee may be terminated, without that termination amounting to an unjust dismissal.
[32] It follows that, before accepting jurisdiction an adjudicator must determine, correctly, whether any termination was the result of lack of work or the discontinuance of a function, in circumstances where the employer's decision is made in good faith. See, for example, Flieger v. New Brunswick, [1993] 2 S.C.R. 651.
[33] To answer whether the adjudicator acted in excess of his jurisdiction, I will next set out the relevant findings he made:
| 43. The Complainant's termination followed the transfer of Ms. Sharma and Mr. Samujh to full-time Data Control Clerk positions. It was not a direct consequence of the discontinuance of their function, but there is a readily identifiable cause and effect relationship. |
| ... |
| 47. I do not detect any element of a sham or any attempt to circumvent the Canada Labour Code in the Employer's decision to terminate three part-time Data Control Clerks. Although I am not convinced it is relevant, I reject the thrust of the Complainant's objections to the transfer of Ms. Sharma and Mr. Samujh to Data Control Clerk positions. |
| ... |
| 49. ...If an employer is acting in good faith for what are perceived to be sound business reasons, I do not apprehend how it can be prevented from transferring employees as part of a legitimate reorganization. That is the necessary implication of the interpretation of section 242(3.1)(a) which I have adopted. |
| ... |
| 50. ... I conclude the Employer's reorganization, including the transfer of the former Collections Representatives to Data Control Clerk positions, was not effected in bad faith or for any ulterior motive. |
| 51. That being so, the next question is whether the termination of three part-time Data Control Clerks was due to the discontinuance of a function or lack of work? The short answer must be that, with the addition of two full-time Data Control Clerks, there was not enough work to occupy the full complement of Data Control Clerks. The Employer was therefore entitled to terminate members of the Data Control Department due to a lack of work. That is what it did when, in accordance with its practice of protecting longer serving full-time employees, it terminated three part-time Data Control Clerks. |
[34] In my view, the adjudicator's findings above are conclusive of the issue of jurisdiction.
[35] I conclude that once the adjudicator determined that Rogers had established that its reorganization was bona fide, that is, not effected in bad faith or for any ulterior motive, and that Rogers was entitled to terminate members of the Data Control department due to lack of work, the adjudicator was without jurisdiction to then consider the merits of Ms. Roe's dismissal.
[36] I find this conclusion to be supported by the decision of this Court in Davis, supra, in which the Court held the adjudicator to lack jurisdiction where the adjudicator found a shortage of work and the employer retained those staff members who would make the strongest management team, and by another decision of this Court in Atomic Energy of Canada Ltd. v. Jindal (1996), 110 F.T.R. 221 (T.D.), aff'd (1998) 229 N.R. 212 (F.C.A.), where Cullen, J. held that where there was a discontinuance of the employee's function the adjudicator had no power to consider the merits of the dismissal.
[37] I also find support for my conclusion in the decision of the Federal Court of Appeal in Canadian Airlines International Ltd. v. Husain (1998), 161 D.L.R. (4th) 381 (F.C.A.). There, once the Court was satisfied that the decision to discontinue functions was made in good faith, and that there was no clear evidence that the decision to terminate the respondent's employment was not a good faith decision, the Court found the adjudicator to be without jurisdiction to make an award.
[38] This was also the result reached by adjudicator McCartney in Desgagne et al. v. Purolator Courier Limited, (unreported, October 7, 1993). There, after determining that the complainants were laid off because of the discontinuance of certain functions, the adjudicator found he had no jurisdiction to consider the complaints any further. The adjudicator stated:
| This jurisdictional bar means, for example, that I cannot consider the fact that the Complainants had more seniority than other employees who were retained by the Company. Nor can I consider the specific details regarding which employees were retained and which employees were laid off. Further, I do not have the jurisdiction to assess the details of the realignment of functions. Simply put, I have no further jurisdiction. |
[39] In the present case, in reaching his conclusion, the adjudicator stated that the "discussion in [England, Christie and Christie] Employment Law in Canada [Loose leaf, 3d ed., 1998] captures almost exactly the same circumstances". The adjudicator then quoted the following passage from paragraph 17.43 of the work:
| For example, if financial exigency necessitates the abolition of 5 out of 10 typing positions, and four of those persons are chosen on the basis of seniority, but the claimant is not chosen on seniority, the inference is that the employer's motive is to get rid of the claimant for some extraneous, non-economic reason. This would fall outside s. 242(3.1)(a) because the termination would not be "because of" lack of work or discontinuance of a function. |
[40] However, it is instructive, and important, to note that the portion of the quote relied upon by the adjudicator is taken from a full passage in the work. The quote relied upon by the adjudicator is preceded by the following:
| Unlike some other country's legislation, which expressly encompasses the notion of unjust selection procedures in layoffs, s. 240 does not empower adjudicators to review the intrinsic fairness of such procedures. Nevertheless, the fairness of selection procedures is relevant as evidence in determining whether the employer's motive is to terminate the claimant for economic/organizational reasons or for some other reason unrelated to the layoff conditions. As Adjudicator Swan puts it, an adjudicator can review the selection procedure applied by the employer in order to determine whether it was utilized as a "colorable attempt to avoid the restrictions on unjust dismissal set out in the Code". [footnotes omitted] |
The quote is then followed by this passage:
| Those words are generally interpreted as establishing a test of subjective intention: does the employer intend to release the claimant for economic reasons or for some other reason? The employee carries an "evidentiary" burden of raising a prima facie case of bad motive on the employer's part, whereupon the onus shifts to the employer to "clearly" establish a "reasonable explanation for the choice of the employee to be laid off". It must be emphasized that adjudicators will review the employer's selection procedures only for this limited purpose of ascertaining the presence of a bona fide motive. The choice of appropriate selection procedures, however, is for the employer alone to make, be it operational factors, straight seniority, comparative skill and ability, or a mixture of both seniority and ability. Indeed, the employer can even choose on the basis of who is paid the least. If the employer makes comparative skill and ability the determinative factor, adjudicators will review the employer's decision only so far as is necessary to ensure that there is no bad faith; adjudicators will not second-guess the substantive correctness of the employer's judgment since the employer has the superior expertise to make such judgments, not the adjudicator. [footnotes omitted] |
[41] I find, with respect, that the adjudicator took the quote he relied upon out of its context. Inquiry into the employer's motive for selecting an employee is only relevant at the stage of the initial determination of jurisdiction. The inquiry into the employer's motive is relevant for the purpose of determining whether or not the termination was bona fide made for reasons of lack of work or the discontinuance of a function.
[42] To the extent the adjudicator relied upon the decision of this Court in Sepdex, supra, as authority for the proposition that an employer must be able to demonstrate that lack of work or the discontinuance of a function was the actual operative and dominant reason for the termination, in the present case this question was answered when the adjudicator concluded that the reorganization was not effected in bad faith or for any ulterior motive and that Rogers was entitled to terminate members of the Data Control department.
[43] Therefore, I conclude that the adjudicator had no jurisdiction to proceed to consider the merits of Ms. Roe's complaint.
(b) The alleged error in finding, as a fact, that lack of work was not the actual operative and dominant reason for termination.
[44] In light of my finding on jurisdiction, it is not necessary for me to review this alternate ground. However, the issue was fully argued before me and I will deal with it briefly.
[45] The adjudicator based his finding that the termination was not because of lack of work or the discontinuance of a function on his conclusion that:
| 59 To repeat, the Employer's stated purpose was to preserve the employment of the most senior employees affected by the loss of the collections work, and terminate the employment of the most junior employees affected. With one exception, that purpose is consistent with the objective facts of what occurred. The one exception is the Complainant. She was senior to two other part-time Data Control Clerks who were not terminated. Ms. Roe's relative seniority was not substantial but, since the Employer's entire rationale was based on seniority, it is significant that the Employer departed from that rationale to include Ms. Roe in the terminations. [emphasis added] |
[46] However, the adjudicator had previously summarized the evidence before him as follows:
| 26 Ms. Marilyn Tyfting, Manager of Human Resources, testified that in circumstances necessitating a reduction of staff it is the Employer's practice to protect longer serving full-time employees. [emphasis added] |
| ... |
| The Complainant was one of five part-time Data Control Clerks who had been hired since the beginning of 1995. |
| ... |
| 31 Ms. Bishop [Rogers' Customer Service Manager, to whom Ms. Roe's supervisor reported] met with the Complainant to give her the letter on January 27, 1998. Consistent with the language of the letter, Ms. Bishop explained that her termination was necessitated by a reorganization. She also advised the Complainant that seniority had been taken into account. Ms. Roe asked whether "work ethics" had been considered, and Ms. Bishop replied that she "had looked at everything". The two met again a few days later, at which time Ms. Roe was particularly concerned to know why she was chosen. Ms. Bishop testified that she told the Complainant the choice had been very difficult and repeated that she had looked at everything. Ms. Bishop advised that for this purpose only Ms. Roe's current service could be considered. [emphasis added] |
[47] The evidence quoted in the preceding paragraph [47] is inconsistent with the adjudicator's conclusions that:
| (i) Rogers stated purpose was to preserve the employment of its most senior employees (as noted, its practice was to protect longer serving full-time employees); and |
| (ii) Rogers entire rationale in selecting part-time employees for termination was based on seniority. |
[48] There was no record before the Court of the proceeding before the adjudicator. Ms. Tyfting swore an affidavit in support of this application. In it, she swore that:
| 9. It is not true that legal counsel for the Applicant herein or any of the witnesses who testified on behalf of the applicant before Mr. Germaine said that Rogers chose the employees to be laid off according to seniority. |
| ... |
| 10. Furthermore, when I was asked by Ms. Otto on cross-examination about what factors entered into the selection of candidates for termination on this downsizing, I said that Ms. Evelyn Bishop and I took a general look at the department in terms of full-time and part-time employees, and the full-time employees had significantly more service than the part-time employees. I also stated that the part-time staff broke themselves into two groups in terms of start dates, and given that there was a whole cluster of part-time employees with 1995 and 1996 start dates, seniority was not really a factor. I also said that Ms. Roe was chosen as one of the 1995-96 cluster to be terminated because she was more "high maintenance" than the others in that group. |
I find this evidence to be consistent with the adjudicator's summary of Rogers' evidence.
[49] In oral argument, the only evidence on the point which Ms. Roe's counsel could refer me to was the affidavit evidence of the junior lawyer, Lisa Osoba, who attended at the hearing on Ms. Roe's behalf. Her evidence was to the effect that:
| 6. In her direct evidence, Ms. Tyfting, Manager of Human Resources for the Applicant testified that ongoing employment was offered to Jeet Sharma and Pete Samujh because both were long-service, full-time employees and it seemed natural that the Applicant protect those long-service, full-time employees when reorganizing the group. Furthermore, she stated that although not policy, it was the Applicant's practice to try and protect these employees during downsizing or reorganization. [emphasis added] |
[50] I find Ms. Osoba's evidence supportive of Rogers' position. The evidence does not support the conclusion that Rogers' stated purpose was to preserve the employment of the most senior part-time employees, or that its entire rationale when selecting part-time employees for termination was based on seniority.
[51] In the result, I conclude that the adjudicator's findings that Rogers' entire rationale was based on seniority and that it departed from that criteria to select Ms. Roe for termination were made without regard to the evidence before him and were, therefore, patently unreasonable.
[52] I do not find it necessary, in view of my conclusions, to consider Rogers' final submission that the adjudicator erred in finding that Ms. Roe was not informed of the real reason for her termination before the hearing.
[53] To conclude, in the absence of any motive for termination other than loss of work or discontinuance of a function, the adjudicator was without jurisdiction to proceed. Once it is determined that the adjudicator was without jurisdiction to proceed, it follows that his decision, including the award of costs to Ms. Roe, must be set aside.
[54] Rogers has not sought redetermination of the matter, and in view of my conclusion on jurisdiction no purpose would be served by remitting the matter for redetermination.
[55] For these reasons, the adjudicator's award is set aside. Rogers is entitled to its costs of this proceeding, to be assessed in accordance with Column III of the table to Tariff B of the Federal Court Rules, 1998.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
September 8, 2000