Date: 19980831
Docket: T-410-97
BETWEEN:
Najib Antoine Jabre
Applicant
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Middle East Airlines (Air Liban)
Respondent
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Me André Dugas, ès qualité d'arbitre nommé aux termes de
l'article 242 du Code canadien du travail, L.R.C. (1985), c. L-2
Mis-en-cause
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of the February 10, 1997 decision of the adjudicator, André Dugas, who held that the applicant had freely and voluntarily resigned from his employment. In addition, the adjudicator held that the respondent must pay the applicant $171.14 in wages for the period encompassing March 12, 1996 to March 21, 1996.
FACTS
[2] There are a great number of events in this case but I have attempted to distil the details to the essential facts. In 1986, the applicant began working for the respondent in Beirut. The applicant applied and was accepted in 1990 for a position in Montreal as a sales promoter and, I am satisfied, he always remained, while employed, a "sales promoter".
[3] On March 8, 1993, the respondent created a system to divide the sales work between the applicant and a Ms. Arabia Saleh, a sales representative. In his decision, the adjudicator found that this division of work was not made arbitrarily and did not affect the applicant's contract of employment by reducing his duties. Still, the applicant's counsel sent a letter to the respondent dated March 12, 1993 which stated that the applicant refused to accept the new conditions. The respondent's counsel responded by letter dated April 22, 1993 which reiterated the new orders and asked that the applicant respect them or suffer disciplinary action.
[4] On September 6, 1995, the applicant requested the respondent's personal file on the applicant. On October 12, 1995, the respondent advised the applicant that the documents were available. The applicant was not satisfied with what was contained in the file and sent a letter on October 20, 1995 which stated that several documents were missing and that he was amazed at the presence of other documents including an article from an Arabic newspaper that contained statements attributed to the applicant. On November 2, 1995, Cherif P. Gémayel, the Canadian sales manager for the respondent and the applicant's direct superior, replied that the newspaper article was relevant because the respondent believed that its employees must be publicly neutral about political events in Lebanon since it may affect the respondent's business.
[5] On November 6, 1995, the applicant responded to Mr. Gémayel that he would register a complaint before the competent authorities (the respondent learned on December 8, 1995 that the applicant had registered a formal complaint with the Access to Information Commission in Quebec). In this letter to Mr. Gémayel, the applicant also wrote the following (see Exhibit R-19):
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As a footnote, I am happy to find that Lebanon, together with Egypt and Canada, also became your country and let me take this opportunity to congratulate you for your new Lebanese Citizenship. May God bless your new country and may you serve it with dignity and fidelity as you are serving MEA. |
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[6] Considering the aforementioned paragraph in the context of the relationship between Mr. Gémayel and the applicant, the adjudicator found that this paragraph was meant to be ironic and was intended to mock Mr. Gémayel. As a result, the applicant was advised on November 17, 1995 by Wajdi Na'man, the respondent's vice-president of industrial relations, that he was suspended for one day. Mr. Na'man explained that the suspension was based on the "personal character attacks against [the applicant's] hierarchical superior" and the "language and allegations [the applicant uses] in answering [the applicant's] superior and the Company." |
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[7] On November 24, 1995, the applicant stated that he would not accept the suspension and would take action to protect his rights. He also told Mr. Gémayel that he would no longer accept any documents faxed to his residence. |
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[8] On December 1, 1995, the applicant received a cheque minus $114.09 which corresponded to one day's wages. The applicant wrote a letter to the respondent demanding reimbursement for that day and also to receive additional pay because he worked Remembrance Day. The applicant also complained that he did not receive his cheque until four days after the other employees received their cheques. |
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[9] On December 11, 1995, Mr. Na'man advised the applicant that his letter of November 6 showed a lack of respect towards his superior and it would not be tolerated by the respondent. In addition, Mr. Na'man advised the applicant that his cheque had been available on November 28, 1995 but the applicant was not at work on November 28 and 29, 1995. The letter continued with the following statement (see Exhibit I-7): |
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The above shows a problem with how and where you spend your time and the absence of reports to the Company about your activities. Your superior will meet with you shortly to once again go over your duties and it is expected that this will be the last time such an exercise is needed. |
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[10] In mid-December 1995, the applicant was in Lebanon and demanded to meet the president of the respondent even though the policy was to meet overseas employees on Tuesdays if the president's schedule permitted. That meeting was cancelled at the last minute. |
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[11] On January 10, 1996, the applicant wrote a letter to Mr. Na'man in which he stated that he considered that Mr. Gémayel utilized his position to bring a vendetta against him. |
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[12] On January 17, 1996, the applicant wrote a letter to Mr. Gémayel which the adjudicator found provided great insight into the applicant's state of mind at that time. The tone of the letter is aggressive and the applicant accuses Mr. Gémayel of being untruthful. The applicant agrees to mediation even though he says that he knows in advance the outcome of such a mediation. The applicant also cites his letter of November 6, 1995 and denies that he was intending to antagonize anyone. He also defies Mr. Gémayel to use any recourse available to him. |
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[13] On February 27, 1996, the applicant filed a claim in small claims court against Mr. Gémayel and the respondent for payment of two days pay and $2,700. in punitive and exemplary damages. This claim was rejected on October 24, 1996. |
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[14] On February 29, 1996, the applicant's counsel wrote a letter to Mr. Gémayel describing their interpretation of the events and grievances and demanding that they be rectified to the applicant's satisfaction. If these grievances were not addressed, the letter threatened that Mr. Gémayel would be sued for approximately $250,000. |
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[15] In the final week of February 1996, Mr. Gémayel and the applicant met to discuss a memo distributed to all employees on January 15, 1996. The applicant stated that he never received this memo. The memo required that all employees fill out a form when they are absent for sickness, accidents, personal reasons, or civic responsibilities. The memo stated that, in case of absence without authorization, the employees could be exposed to disciplinary sanctions. |
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[16] The January 15, 1996 memo was attached to a March 1, 1996 letter from Mr. Gémayel to the applicant which cited his numerous prolonged absences from work without justification. The letter of March 1, 1996 stated, in part (see Exhibit R-35): |
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In view of the fact that the situation has not changed in spite of my above mentioned memo to all staff, I am now forced to turn to the strict application of the rules contained in the said memo. Failure to comply with these directives will result in disciplinary action; this is regrettable but it is the unfortunate result of past excesses. |
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I therefore appeal to your sense of responsibility to insure that this situation, which can potentially create problems with other employees, be corrected at once. |
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[17] The applicant responded on March 5, 1996 that he did not accept the terms of these memos and was not able to place any confidence in Mr. Gémayel. The applicant also stated that he had been the object of a strategy of intimidation, threats and harassment. |
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[18] On March 12, 1996, the applicant met Mr. Gémayel who later gave the applicant a memo confirming their meeting. The memo stated that the applicant had failed to provide a sales plan and confirmed that they would meet again on March 25, 1996 to discuss the applicant's proposed sales plan. The memo also stated that the respondent would no longer tolerate any deviation from previous directives and that disciplinary action or possible dismissal may occur if the applicant's defiance of directives continued. The letter concludes (see Exhibit R-39): |
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We remain confident that you will change your attitude and start performing your duties in a manner in which all of us will gain profit. We once again assure you of our continued support toward reaching this goal; you must however understand that this is the very last chance you are given. |
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[19] The applicant rarely showed up at work between March 12, 1996 and March 21, 1996. The adjudicator found that the applicant attended work for approximately one and a half days during that time span. The applicant did not receive approval for his absences nor was he precise in his testimony at the hearing about the hours and dates he worked between March 12, 1996 and March 21, 1996. |
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[20] On March 19, 1996, the applicant wrote to Mr. Gémayel and stated that he would not accept the directives he received. Again, he stated that he was suffering from rising disciplinary measures intended to cause his resignation. He also stated that his contract of employment had been modified and he had been demoted in a disguised attempt to dismiss him. In his decision, the adjudicator disagreed that the applicant had been employed in a different position than sales promoter since he joined the respondent. The adjudicator also stated that the respondent's letters and directions were sufficiently clear for a reasonable person to follow and work as his employer demanded. The adjudicator concluded that the source of the attitude problem came from the applicant and that Mr. Gémayel had been very patient. |
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[21] On March 21, 1996, the applicant was absent from work without filling out any form or providing any explanation. The applicant registered a complaint with the "Commission des droits et libertés de la personne" on that date. The applicant received a letter dated March 21, 1996 from Mr. Gémayel stating that the applicant had not appeared at work and requested that he justify such absences or he would not receive payment for that period. At the hearing, the applicant stated that he met with Mr. Gémayel upon receiving this letter and was told that he was dismissed but Mr. Gémayel denied that such a meeting occurred or that he said anything of the sort. In his decision, the adjudicator held that Mr. Gémayel did not have the power to fire an employee and it is clear from the evidence before the adjudicator that Mr. Gémayel did not have the power to dismiss any employees. |
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[22] On March 21, 1996, the applicant told Mr. Gémayel's secretary that he had been fired and that he would appear at work the following day to receive a letter of reference and wages owing. Upon receiving this information, Mr. Gémayel drafted a letter dated March 21, 1996 which stated that the applicant had not been fired and that no decision had been made with regard to disciplinary action. Mr. Gémayel reiterated that he had merely requested that the applicant justify his absences. Mr. Gémayel added that if the applicant maintained his interpretation of these facts and refused to work, then the respondent would consider that the applicant had resigned. Mr. Gémayel's secretary attempted to fax this letter several times on March 21 but the applicant's fax machine did not respond. |
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[23] At approximately 11:00 p.m. on March 21, 1996, the applicant faxed a letter to Mr. Gémayel confirming that he had been dismissed and that he would arrive at work the next day to obtain the aforementioned documents. At approximately 1:00 a.m. on March 22, 1996, the applicant sent a letter to Mr. Samir Saab, the respondent's associate vice-president (legal affairs), stating that seven workers would confirm that he was not absent from work both before and after March 12, 1996. However, at the hearing the applicant admitted that he had been away from work. |
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[24] On March 22, 1996, Mr. Gémayel read the applicant's fax and wrote a new letter to the applicant but again the applicant's fax machine did not respond. As a result, the March 21, 1996 and March 22, 1996 memos were put into an envelope addressed to the applicant. The applicant appeared at work to pick up his documents at about noon. There is contradictory evidence about whether the applicant actually read the memos contained in the envelope. The applicant states that he did not read them and merely threw them on the table when he realized that there was no cheque enclosed with the two memos. Other witnesses state that he read the letters, albeit quickly and then threw them on the table. The adjudicator stated he could not explain why the applicant would not read the memo given his willingness to consider other correspondence in the past. |
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[25] On April 1, 1996, the applicant and his lawyer received an envelope containing the March 21, 1996 and March 22, 1996 memos, a letter from Mr. Na'man dated March 26 as well as cheques and other documents. The applicant's lawyer sent letters to the respondent on April 2, 3 and 4, 1996 and the applicant sent a letter on April 10, 1996 but these letters did not mention the March 21, 1996 and March 22, 1996 memos from Mr. Gémayel or the statement that the applicant had not been dismissed. |
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[26] In his decision, the adjudicator held that the applicant had not been dismissed. The adjudicator stated that the directives of the respondent were not vexatious and were not the equivalent of a demotion or a major change in work conditions. The adjudicator said it was clear that the directives irritated the applicant but that his reaction was excessive and bordered on insubordination. In addition, the adjudicator did not believe that the applicant would have provided a sales plan on March 25, 1996. |
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[27] Moreover, the adjudicator found that the applicant lacked credibility and preferred the testimony of Mr. Gémayel. Thus, the adjudicator did not believe the applicant's statement that he had been fired on March 21, 1996. The adjudicator also accepted the respondent's claim that there were several attempts to fax the March 21, 1996 letter and that this letter was attached to the March 22, 1996 letter contained in the envelope for the applicant. The adjudicator also held that all these letters were sent on March 27, 1996. Although the adjudicator stated that it may have been more prudent to send the letters to the applicant by bailiff, the respondent's attempts were deemed to be sincere. |
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[28] The adjudicator found that there was insufficient evidence to support the applicant's contention that he had been targeted due to the complaints he had made or his political activities. The adjudicator held that the respondent's directives were normal and it was not demonstrated that the respondent was guilty of such ulterior motives. |
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[29] In conclusion, the adjudicator found that the March 21, 1996 memo was not a letter of dismissal, nor did the adjudicator believe that a meeting had occurred that same day between the applicant and Mr. Gémayel where the applicant allegedly learned he was fired. The adjudicator concluded from the events of January to March 1996 that the applicant's resignation was free and voluntary and was caused by his refusal to accept the legitimate authority of his employer and immediate superior as well as his refusal to justify his work schedule from March 12, 1996 to March 21, 1996. |
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[30] In addition, the adjudicator found that the respondent owed the applicant $171.14 which amounted to one and a half days worked from March 12, 1996 to March 21, 1996. |
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1. The Applicant's Submissions |
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[31] I do not intend to provide great detail about the applicant's submissions since they often concern alleged minor factual discrepancies or errors by the adjudicator. Instead, the major issues are set out below. |
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[32] The applicant's first submission is that the adjudicator is in a conflict of interest. The adjudicator, along with other lawyers of Leduc, Lebel, are or were defendants in a civil action in the Quebec Superior Court. The defendants were represented by Leduc, Lebel until December 1993. Since that date, Desjardins, Ducharme, Stein, Monast (DDSM) replaced Leduc, Lebel as their representatives in the lawsuit. Gilbert Poliquin, lawyer for the respondent in the case at bar, worked for DDSM until August 1993. Moreover, the respondent was represented by DDSM in 1993. |
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[33] The applicant submits that the adjudicator failed to tell the applicant that he was represented by DDSM. The applicant adds that Mr. Poliquin also had the obligation to disclose this information. The applicant states that if he had known about this situation, he would have asked the adjudicator to remove himself prior to the hearing. The applicant submits that these facts show a reasonable apprehension of bias. |
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[34] The applicant's second submission is that the adjudicator erred in law in finding that the applicant had resigned. The applicant argues that the adjudicator focussed on the fact that the applicant refused to provide a written activity report or a visit plan despite the directions of the respondent. The applicant submits that the adjudicator erred in focussing on the intention of the behaviour of the applicant rather than considering whether the respondent had the intention to fire the applicant. |
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[35] Moreover, the applicant submits that if the respondent required that the applicant submit a written activity report or a visit plan, the applicant's refusal to do so would be compatible with a conclusion that the respondent fired the applicant and not that the applicant quit. As well, if the applicant refused the legitimate authority of the respondent, then the applicant contends that it is reasonable to conclude that the applicant was dismissed rather than that he resigned. |
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[36] The applicant also argues that if the respondent had made a sincere effort to convince the applicant that he had not been fired, the respondent would have found a better way to communicate such information to the applicant. Moreover, the applicant submits that the adjudicator did not determine if the March 21, 1996 and March 22, 1996 letters had any effect on the applicant's impression that he had been fired. |
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[37] The applicant submits that the adjudicator failed to consider the following principles: that resignation has a subjective and objective element; that the resignation must be voluntary; that the resignation is valued differently if the intention to resign is expressed; that the intention to resign is not presumed if the conduct of the employee is incompatible with another interpretation; that an expression of the intention to quit is not necessarily evidence of true intention; that in the case of ambiguity, the jurisprudence generally refuses to find a resignation; and that past and future conduct are important to determine the existence of a resignation. |
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[38] The applicant submits that in finding that the applicant had resigned, the adjudicator did not base this on any proof or testimony. The applicant further argues that the adjudicator did not consider changes in the employment contract, work conditions and environment. To find that the resignation was not forced, the applicant submits that the adjudicator must consider whether there were changes in the contract or work conditions, whether the changes were made in good faith and whether they were justifiable. The applicant submits that the adjudicator erred in law by failing to consider these issues. |
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[39] The applicant's third submission is that the adjudicator violated the rules of procedural equity and natural justice by failing to hear three of the applicant's witnesses. The adjudicator refused to hear Diane Bélanger of Human Resources Canada, a travel agent and a sales representative for Royal Jordanian Airlines who serves the same clientele and destinations as the respondent. The applicant notes, however, that the adjudicator allowed the respondent to examine an Air France representative. The applicant submits that the adjudicator failed to consider all the pertinent proof. |
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[40] The applicant also provides a list of evidence that the adjudicator failed to mention: that the applicant clearly indicated his intention to demand reinstatement; the alleged threat in the March 21, 1996 letter that "positions that add little to MEA's overall productivity could be at risk"; that Mr. Gémayel did have the power to fire the applicant, contrary to the finding of the adjudicator; that the reason the applicant failed to take the letter containing the memos following his dismissal was because he did not want to be perceived as having accepted his dismissal in order not to prejudice his reinstatement; that the adjudicator found Mrs. Ferreira and Mrs. Khatib, the respondent's employees, credible but did not note that they received telephone calls from Mr. Gémayel asking if the applicant had left the building on March 21, 1996 because this fact would be evidence that the applicant was dismissed; that the adjudicator did not mention that the applicant said he was fired in his March 22, 1996 letter; that the adjudicator did not consider the contradiction between the decision to suspend his pay and the March 21, 1996 letter in which the respondent said it had not taken disciplinary measures against the applicant. In refusing to consider this proof, the applicant submits that the adjudicator violated the rules of natural justice. |
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[41] The applicant's fourth submission is that the adjudicator made a manifestly unreasonable error in finding that the respondent demanded written reports from the applicant. The applicant provides a list of situations where Mr. Gémayel either did not specifically request written reports or stated that such reports were merely for the benefit of employees only. The applicant also submits that Mr. Gémayel did not require a written sales plan or list of clients. The applicant submits that it was only in the letter of March 21, 1996 that Mr. Gémayel required a written document but this was only to justify his absences from work. The applicant also submits that since Mrs. Saleh and other employees gave and received oral reports and instructions to and from Mr. Gémayel then it was reasonable to conclude that the same rules would apply between Mr. Gémayel and the applicant. |
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[42] The applicant also submits that the adjudicator erred in finding that the applicant was not demoted or had his work conditions changed. On November 30, 1989, the applicant's title was changed from "promoter of immigrant travel" for Canada to "sales promoter" for Montreal. The territory was therefore limited from important cities in Canada to just Montreal. In early 1993, the applicant lost his office, "work tools", telephone, work table and chair, which substantially modified his work environment. On March 8, 1993, the respondent limited the applicant's activities to 32 agencies while the majority of the clients were given to Mrs. Saleh who was hired six and a half years after the applicant. Finally, in February 1996, the respondent demanded that the applicant stay in the office from 9:00 a.m. to 5:00 p.m. which prevented him from effectively making sales. |
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[43] Moreover, the applicant submits that the adjudicator erred in finding that the applicant categorically refused to accept the orders of the respondent. The applicant submits that there is no evidence that he categorically refused to follow their orders. The applicant notes that Mr. Gémayel made this statement at the hearing but could not provide any support for it. |
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[44] The applicant also cites a list of nineteen other errors made by the adjudicator. I do not believe it is necessary to mention them all. I will cite a few examples. The applicant notes that the adjudicator found that there was a division of work between himself and Mrs. Saleh, but he submits that it was actually a division of territory. The applicant also disputes the adjudicator's finding that Mrs. Saleh worked for many years when in fact she had only worked for the respondent since August 1992. The applicant also disputes the adjudicator's finding that he was not present at work from November 28 until November 30, 1995. The applicant submits that this holding was based on Mr. Na'man's written statement. The applicant submits that Mr. Na'man resides in Lebanon and would have no knowledge of the facts. Moreover, the applicant had no opportunity to cross-examine Mr. Na'man and he submits that this violates the principles of natural justice. The applicant also argues that the adjudicator erred in finding that the division of accounts and tasks between himself and Mrs. Saleh was not part of the employment contract. The applicant points to the contract of employment which provides a definition of territory, work and accounts. By restraining territory, accounts and work, as well as work tools and changing the work environment, the applicant submits that his employment contract was modified. |
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[45] The applicant also argues that the adjudicator erred in his findings on the credibility of the witnesses. Another alleged error was that the adjudicator failed to rule on the right of the applicant to compensation for vacation time. |
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2. The Respondent's Submissions |
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[46] The respondent submits that the court should only intervene to ensure that procedural protection was afforded to the applicant or if the adjudicator's decision was manifestly unreasonable (Pezim c. Colombie-Britannique (Superintendant of Brokers), [1994] 2 R.C.S. 557; Fraternité Unie c. Bradco, [1993] 2 S.C.R. 316). The respondent notes that the adjudicator has expertise and that the Canada Labour Code, R.S.C. 1985, c. L-2, includes privative clauses which demonstrate that the legislature intended to limit the intervention of the court. These privative clauses read: |
| 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.
251.12 (6) The referee's order is final and shall not be questioned or reviewed in any court.
(7) 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 a referee in any proceedings of the referee under this section.
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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.
251.12 (6) Les ordonnances de l'arbitre sont définitives et non susceptibles de recours judiciaires.
(7) 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 du présent article.
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[47] As a preliminary matter, the respondent submits that nine documents submitted to this Court for judicial review should not be permitted to be produced because they were not before the adjudicator (these documents are noted at paragraph four of the respondent's submissions). |
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[48] On the question of reasonable apprehension of bias, the applicant contends that there is no bias merely because the adjudicator had a prior relationship with a law firm in which the respondent's lawyer used to work. The respondent notes that the hearing was recorded and submits that there is no evidence of partiality by the adjudicator. Moreover, the respondent notes that DDSM ceased representing the respondent more than three years before the adjudicator began to hear this case. The respondent submits that this is a sufficient time lapse to conclude that there was no conflict of interest. In addition, although the respondent's lawyer represented the respondent on one active file while he worked at DDSM, DDSM consisted of more than 90 lawyers. The respondent also submits that the applicant's argument is based on the hypothesis that good relations continued between DDSM and the respondent following the change in solicitors but there is nothing upon which to base that presumption. |
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[49] Furthermore, the respondent submits that it was an insurer who retained DDSM in order to represent all the members of Leduc Leblanc and that the insurer would suffer the consequences of an adverse finding against the adjudicator and the other defendants. The respondent also notes that respondent's counsel and the adjudicator had no direct contact with Mr. Lizotte who handled the civil matter. Thus, the respondent submits that an objective person would not find that there was a reasonable apprehension of bias on the part of the adjudicator. In the absence of such a reasonable fear, the respondent submits that the adjudicator did not have to discuss this fact with the applicant. |
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[50] The respondent's second submission is that the adjudicator has considerable discretion to decide the manner in which proof is admitted. To allow the judicial review application, the respondent submits that there must be clear refusal by the adjudicator not to receive proof, that this proof must not only be pertinent but also indispensable, and that such refusal must have an impact on procedural equity such that it puts in doubt the validity of the process. The respondent notes that this was a six day hearing where ten witnesses were heard and seventy-six documents were submitted. The respondent submits that the adjudicator must hear the evidence impartially but has the obligation to ensure that the hearing is not unduly prolonged by non-essential proof. |
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[51] Concerning the adjudicator's refusal to hear three witnesses for the applicant, the respondent submits that there was no evidence they were present or summoned or that the adjudicator categorically refused to hear their evidence in another form. With regard to Mrs. Bélanger, the adjudicator held that a discussion she had with respondent's counsel about unemployment insurance had little relevance to the proceedings. The respondent notes that the adjudicator accepted a written report concerning that conversation. |
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[52] With regard to the unidentified travel agent, the respondent submits that the applicant never stated why this evidence was relevant and he himself suggested that written submissions were sufficient. The adjudicator agreed to accept written submissions. |
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[53] Finally, with respect to the representative from Royal Jordanian Airlines, the respondent notes that the adjudicator agreed to hear Mrs. Sonia Tower from Air France to show that Air France required written sales reports. Following that testimony, the adjudicator stated that such evidence was of little value and the respondent submits that this explains why he refused to hear the representative from Royal Jordanian Airlines. However, the adjudicator did accept written submissions from the representative so that the applicant was able to show that other airlines do not require written reports. |
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[54] The respondent's next submission refers to the applicant's lengthy citation of documents to which the adjudicator did not refer. The respondent contends that it is unreasonable to expect that the adjudicator will refer to all documents especially since the decision was already 41 pages in length. |
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[55] The respondent's next submission is that the questions of whether the applicant was dismissed, either expressly or implicitly, and whether the applicant was entitled to remuneration for the period of March 12, 1996 to March 21, 1996 are questions that are clearly within the competence of the adjudicator. The respondent submits that such a decision can only be overturned if there was a manifestly unreasonable error made by the adjudicator. To decide whether there was a dismissal in law, the respondent contends that the adjudicator must decide if: a) Mr. Jabre had been verbally dismissed by Mr. Gémayel during the meeting on March 21, 1996 or b) whether the measures in the March 21, 1996 memorandum which reduced the applicant's salary until he submitted a report justifying his absences from work since March 12, 1996 constituted a disguised dismissal. The adjudicator held that the witnesses' testimony was consistent with each other, with the exception of the applicant. The adjudicator held that the applicant was not credible and that there were contradictions about his work schedule between March 12, 1996 and March 21, 1996. |
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[56] The respondent submits that the court should be very reluctant to intervene on credibility issues even when the applicable level of review is correctness. |
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[57] Concerning the allegation of verbal dismissal, the adjudicator held that the versions offered by the applicant and Mr. Gémayel were contradictory. Without evidence supporting the applicant's testimony, the adjudicator evaluated their respective testimony and preferred the testimony of Mr. Gémayel that the applicant was not verbally dismissed. |
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[58] The adjudicator also considered whether the employer had unilaterally changed the essential conditions of the applicant's employment contract by requiring that a sales plan be submitted prior to visiting clients and a sales report be handed in for the upcoming meeting. The respondent contends that the adjudicator held that such a requirement was legitimate, that it existed for several years and was not discriminatory but that the applicant had refused to submit to it. Therefore, the adjudicator concluded that there was no indirect dismissal. |
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[59] The adjudicator also took into consideration the applicant's grievances concerning his superior and the respondent, which were based on uncorroborated testimony, contradicted by other witnesses, to find that there was no demonstration of bad faith on the part of the respondent but that the applicant had an attitude problem. |
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[60] Finally, the adjudicator considered the actions of the parties after March 21, 1996, to find that the respondent had used reasonable means to disabuse the applicant of his belief that he had been dismissed. The respondent notes that the applicant was the only party who spoke of dismissal and he was told on at least two occasions that he was not dismissed. The respondent notes that the applicant had the opportunity to take the documents explaining this fact on March 22, 1996 but he refused. When he finally received the documents on April 1, 1996, the respondent notes that the applicant's attitude did not change. In addition, the respondent submits that the applicant's unwillingness to accept that his attitude created problems with other employees entrenched the impasse with the respondent and caused the problems with his superior. |
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[61] In this context, the respondent submits that it was reasonable for the adjudicator to find that the applicant assumed the responsibility for the breach of the employment tie. The respondent contends that there was no objective basis upon which to find that the employment contract had been ended by the respondent and, on the contrary, the respondent's interest in maintaining the employment relationship was manifest. By his attitude, the applicant created an impasse because he clung to his belief that he was fired and could not return and this permitted the respondent to conclude that he had quit. The respondent cites several other decisions where the tribunal considered similar facts and held that the applicant had quit rather than been dismissed. |
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[62] Let me first state the general principle as it relates to adjudicators' decisions under the Canada Labour Code as stated by Rouleau J. in the case of Kelowna Flightcraft Air Charter Ltd. v. Ladislav Kmet, T-1371-97, June 2, 1998, F.C.T.D. at page 8: |
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[para 15] I am refusing to set aside the impugned decision for the following reasons. It is now well established that the courts should allow administrative tribunals to perform the task conferred upon them by their enabling legislation and should exercise self-restraint when asked to review their decisions. This is especially true where the enabling legislation contains a strong privative clause, such as the one found in section 243 of the Canada Labour Code. That provision reads as follows: |
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| 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 or quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator made under section 242.
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243(1) Lbs 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.
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[para16] A privative clause of this nature means that a decision of an Adjudicator is not subject to judicial review unless it is so patently unreasonable that it cannot be rationally supported by its enabling legislation and justice requires the intervention of the Court. This principle of law was clearly stated by the Supreme Court of Canada in Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14 et al. (1989), 62 D.L.R. (4th) 437 at p. 453: |
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Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function: see CUPE Local 963 v. N.B. Liquor Corp., [1979] 2 S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by this court upon review" (p. 425). The test for review is a "severe test": see Blanchard v. Control Data Ltd., [1984] 2 S.C.R. 476. This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction resorted to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The court must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. (emphasis added) |
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[para 17] It is immaterial therefore, whether the Court agrees with the tribunal's conclusion on the issue before it. Provided the decision does not contain such a grievous error of law as to be a misinterpretation of the statutory provisions under which it was made, it is not based on a material finding of fact for which there is no evidence, or the tribunal has not exceeded its jurisdiction in some other way, the decision will not be interfered with. In order for the Adjudicator's decision to be considered patently unreasonable, it must be found by the court to be clearly irrational insofar as there is no evidence to support it. |
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[63] Although the decision of the adjudicator and the parties' submissions are quite detailed, the issues in this case are very straightforward. I do not believe that the adjudicator has made a reviewable error in any respect. |
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[64] First, I reject the applicant's argument that there is a reasonable apprehension of bias because the adjudicator and the respondent's counsel have a relationship with DDSM. The accepted test for whether there is a reasonable apprehension of bias was provided in de Grandpré J.'s dissenting judgment in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at page 394: |
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...the apprehension of bias must be a reasonable one, held by reasonable and rightminded people applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. |
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[65] It is patently obvious that a reasonable person who had obtained the required information would conclude that there was no bias. I find it completely irrelevant that the adjudicator is represented by DDSM and the respondent's counsel worked for DDSM over three years ago. Respondent's counsel had no direct contact with the civil action involving the adjudicator or with Mr. Lizotte, nor did he have knowledge of the file while he worked at DDSM. In these circumstances, I cannot conceive how a reasonable person could perceive that there was any possibility of bias. |
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[66] The second broad issue is whether the adjudicator erred in finding that the applicant had freely and voluntarily resigned from his position. The adjudicator considered the evidence in great detail and outlined the escalating problems between the applicant and Mr. Gémayel. The adjudicator considered that the methods used by the respondent to ensure the proper operation of the business were reasonable. These methods included the requirement that the applicant and other employees provide an explanation when they were absent from work and that the applicant provide a sales plan and document any visits to clients. The applicant appeared to find that these directives were merely meant to antagonize him and force him to resign. I agree with the adjudicator's finding that these directives were in the best interests of the company and were not an indirect means of forcing the applicant to resign. I note that in several letters and memos to the applicant, Mr. Gémayel and other management personnel stated that they hoped that the applicant would understand and accept these directives so that they could pursue a mutually beneficial result. |
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[67] I also accept the adjudicator's finding that there was no meeting on March 21, 1996 in which Mr. Gémayel dismissed the applicant. That finding was based on the adjudicator's impression of the credibility of the applicant versus that of Mr. Gémayel and the court is obviously quite reluctant to interfere with a credibility determination. Moreover, this interpretation of the facts is supported by Mr. Gémayel's letter of March 21, 1996 where he wrote that the applicant had not been dismissed but that he must provide justification for his absences in order to receive his wages. |
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[68] Mr. Gémayel attempted to fax this information to the applicant on several occasions and provided it to him in an envelope to be picked up on March 22, 1996. The applicant had the opportunity to read this information upon his arrival at work on March 22, 1996 but either refused to do so or was blind to its contents. Nevertheless, Mr. Gémayel sent the letters to the applicant and his counsel within a week so it cannot be said that they were unaware of the respondent's position. I find it strange that the applicant did not seek to address Mr. Gémayel's statement that he had not been dismissed given that he had vehemently attacked Mr. Gémayel's previous correspondence on a number of occasions. |
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[69] Under such circumstances, I do not see how the adjudicator erred in finding that the applicant had freely and voluntarily resigned. The applicant refused to accept reasonable directives from his employer and he refused to return to work. I cannot conclude that the adjudicator erred in finding that there was no constructive or express dismissal. |
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[70] I also do not accept the applicant's submission that the adjudicator violated the principles of natural justice by failing to allow oral testimony from three witnesses. I note that all three witnesses were able to provide written testimony and that the applicant acquiesced to this request and specifically suggested that written evidence from the unidentified travel agent would be appropriate. Furthermore, I am satisfied that the value of such testimony is quite minor in the context of the case. The adjudicator was not swayed by evidence from the respondent's witness from Air France and therefore concluded that evidence on the same point from a representative from Royal Jordanian Airlines would have little value. Similarly, the evidence from Mrs. Bélanger and the unidentified travel agent appears to be of little consequence. It might have been wiser for the adjudicator to have allowed these persons to give oral evidence but, on the basis of this entire case, I cannot conclude that there was a denial of a fair hearing. |
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[71] Finally, with respect to the details that the adjudicator left out of his decision or any alleged contradictions or errors in the decision, I am satisfied that the applicant has not shown that these alleged errors make the adjudicator's decision patently unreasonable. Since I have outlined a portion of these alleged errors in the above section entitled "The Applicant's Submissions", I do not believe it is necessary to examine these submissions in great detail. Essentially, these submissions consist of disagreements about minor issues which, even if true, could have no real effect on the outcome of the decision. For example, even if one accepts the applicant's claim that Mrs. Saleh had worked for the respondent for a short period of time, that does not mean that the decision to divide work between the applicant and Mrs. Saleh was unreasonable. I do not believe it necessary, for the purposes of this decision, to examine and comment on each of the applicant's submissions on each and every incident. |
CONCLUSION
[72] I am fully satisfied, after hearing the submissions of the parties, and from reading the evidence and written submissions of the parties, that one cannot conclude that the decision of the adjudicator is unreasonable and is not based on the evidence that was before him.
[73] As I have stated, it is not for the court to intervene on the issue of credibility. The adjudicator was and is the best person to decide the issue of credibility. The witnesses appeared and testified before the adjudicator and he was best placed to decide as to the weight to be given to the testimony of a particular witness.
[74] It was within the jurisdiction of the adjudicator to accept or not accept the evidence of Mr. Gémayel, or that of the applicant. The fact that he accepted the evidence of Mr. Gémayel and not that of the applicant was open to him in that he gave his reasons for so doing.
[75] As was said, the decision of the adjudicator is subject to the privative clause found in the Canada Labour Code. In order for me to quash or vary the adjudicator's decision, I must be shown that the decision is manifestly unreasonable or a material part of the decision is manifestly unreasonable. I cannot so conclude.
[76] The application for judicial review is denied with costs in favour of the respondent.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, ONTARIO
August 31, 1998