On January 19, 2016 the Supreme Court of Canada will hear
arguments in the case of Joseph Wilson v. Atomic Energy of Canada Limited (“AECL”)
(2015 FCA 17). The case involves
the proper interpretation of certain provisions of the Canada Labour Code
(“Code”) and whether
an employee whose employment is subject to the Code, if dismissed without
cause, has automatically been unjustly dismissed.
In this case, AECL had employed Mr. Wilson for four and a
half years. Starting out as a Senior Buyer/Order Administrator, Mr.
Wilson had received many promotions. His last position was Procurement
Supervisor, Tooling. That position was not managerial. On November
16, 2009, AECL terminated Mr. Wilson’s employment without cause. AECL offered Mr. Wilson a severance package equal to roughly six
months’ pay in exchange for a full and final release. Had his severance
package been determined in accordance with the minimum statutory notice and
severance requirements under the Code, he would have been entitled to only 18
days’ pay.
Mr. Wilson did not sign the release. Instead he filed
a complaint under Part III of the Code alleging that he had been unjustly
dismissed. At the request of his counsel, Mr. Wilson remained on AECL’s
payroll for roughly six months, continuing his access to AECL’s employee
benefit programs. In the end he received the full amount of the severance
package AECL had originally offered to him.
An adjudicator was appointed to hear Mr. Wilson’s complaint
under the Code. In the agreed statement of facts placed before the
adjudicator, the parties identified two “preliminary questions”: 1.
Whether as a matter of statutory interpretation AECL could lawfully terminate
Mr. Wilson’s employment on a without cause basis; and 2. If so, whether
the severance package gave rise to a "just dismissal".
The adjudicator accepted Mr. Wilson's submission that
dismissal without cause is, by that reason alone, unjust dismissal within the
meaning of the Code and that he was therefore entitled to a remedy.
Having made that decision, the adjudicator adjourned
the hearing, directing the parties to discuss the appropriate remedy in the hopes that it
might settle. Absent settlement, he intended to conduct a hearing
to determine whether a remedy was warranted and if so what it should be.
AECL applied to the Federal Court for judicial review of the
adjudicator’s decision. The Federal Court dismissed the appellant’s
objection that the judicial review was preliminary and found that the
adjudicator’s statutory interpretation decision was unreasonable. The
Federal Court quashed the adjudicator’s decision and remitted the matter back
to the adjudicator for decision.
On further appeal to the Federal Court of Appeal, the court
dismissed Mr. Wilson’s appeal.
The Federal Court of Appeal found that the proper interpretation of the Code had created two schools of thought which have persisted for decades. The key consideration by the court was whether Part III of
the Code ousted the common law of dismissal or whether it accepts the common
law as given, supplementing and building upon it. At common law, an
employer could dismiss a non-unionized employee without cause, but is liable to
provide reasonable notice or compensation in lieu of notice. If the
employee is given such notice, he or she is not wrongfully dismissed.
The Federal Court found that the provisions found in Part
III of the Code do not represent a sea-change in the law of dismissal but rather
enhance the remedies that may be available in appropriate cases of
dismissal. It will always be for the adjudicator to assess the
circumstances and determine whether the dismissal, whether or not for cause,
was unjust. The dismissal of an employee without cause is not
automatically unjust.
Part III of the Code sets out a complaints mechanism and
remedies for “unjust” dismissal. Specifically, a subsection of the Code
empowers an adjudicator to “consider whether the dismissal of the person who
made the complaint was unjust”. The Code does not define
unjust. The Federal Court of Appeal examined whether Part III ousted the
common law of employment or supplemented and built upon it as set out in that
subsection.
In reaching its decision, the Federal Court of Appeal held
that the legislator is presumed not to depart from prevailing common law.
Such prevailing common law can be ousted only by way of explicit
language or necessary implication. An example of necessary implication is
where the legislator has provided for something that conflicts with the common
law so that the two can no longer live together. The common law is not
ousted unless Parliament has expressed its intentions to do so with “irresistible
clearness”. The Code does not contain text or necessary implication that
can be taken to oust the aspects of the common law of employment. The
Code was enacted against the backdrop of the common law and does not explicitly
oust it in this respect.
Wilson has obtained leave to appeal from this decision to the Supreme Court of Canada.
AECL's case at the FCA was argued by my partner Ron Snyder. I will keep you posted.
Regards,
Blair
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