Canada: Bye-Bye Bird[Ie]? Not So Fast, Says Federal Court Of Appeal: Dismissal Of Principal May Still Be Unjust Despite Adjudicator's Findings Of Misconduct

Last Updated: August 23 2017
Article by Kelsey Orth

You may recall a recent article by Angela Wiggins regarding the remedy of reinstatement for federal employees under the unjust dismissal provision of the Canada Labour Code.  You may also recall that the decision in question there was considered an extension of the Supreme Court of Canada's reasoning in Wilson v. Atomic Energy, originally discussed here.  We can now add the decision of the Federal Court of Appeal in Bird v. White Bear First Nation to this unfortunate canon regarding the Unjust Dismissal provision(s) of the Code.

In December, 2014, Murray Bird, the principal of White Bear First Nation's on-reserve school was fired by the White Bear First Nation Education Board for alleged misconduct on the following grounds:

  1. serious incompetence;
  2. insubordination;
  3. sexual harassment;
  4. a criminal act;
  5. significant breaches of workplace policy;
  6. breaches of trust and duty of fidelity; and
  7. an overt pattern of misconduct and impropriety.

Bird then filed a complaint under section 240(1) of the Canada Labour Code, which provides that "any person (a) who has completed twelve consecutive months of continuous employment by an employer, and (b) who is not a member of a group of employees subject to a collective agreement, may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust."  Although there is a managerial exemption to the application of this provision, in his or her (unpublished) decision, the Adjudicator somehow found that Bird – the principal of a school – was not a manager.  In our view, this is a strange determination to make given the circumstances of Bird's position.  We note also that this finding was not challenged by the Employer in the subsequent appeal to the Federal Court.

Having found that the Code applied, the Adjudicator nonetheless determined that the Employer had just cause, and upheld Bird's dismissal.  In so doing, the Adjudicator made findings with respect to incompetence, insubordination, financial mismanagement and sexual harassment.  The Adjudicator also commented on the Employer's proper adherence to, and compliance with, its termination policies and procedures and Bird's employment agreement.

However, when Bird appealed the decision of the Adjudicator the Federal Court of Appeal sided with him and overturned the Adjudicator's decision.  Justice Diner took issue with the Adjudicator's failure to address the key concepts of progressive discipline and proportionality – two integral aspects of unjust dismissal analysis following the Supreme Court's decision in Wilson v. Atomic Energy:

Clearly, it is open to an adjudicator to make findings of misconduct based on his or her overview of the evidence, which the Adjudicator did in this case. However, it is not open to the adjudicator to simply list those findings and come to a conclusion that cause was established and thus dismissal is warranted without explaining why the tests for cause and proportionality, so well established in the law, were not applied. Indeed, such a "categorical" approach was rejected by the Federal Court of Appeal in Payne at para 46.

In short, the jurisprudence calls for a more rigorous and thoughtful analysis. As such, the Adjudicator's failure to engage in a proportionality analysis developed in Scott, McKinley, and Payne blemishes the transparency and justification of the Decision.

Justice Diner found that the Adjudicator had not made any effort to explain why the Employer's failure to follow progressive discipline was excused in this case; while there can be occasions where progressive discipline can be ignored, in this instance the Adjudicator's decision failed to address why this was one such situation.  Accordingly, the Adjudicator's decision had to be overturned, with a statement from Justice Diner that " the Adjudicator must provide transparent, intelligible and justifiable reasons, ... as to why [Bird's] misconduct, in all the circumstances, merits the most severe of all punishments in the domain of employment and labour law – dismissal with cause – as opposed to a lesser sanction."  The case was then remitted to a different adjudicator for re-adjudication.

While this Federal Court of Appeal decision focused on the Adjudicator's reasoning and not as much on the Employer's actions and decisions, it does shed light on the need for employers to provide clear and cogent evidence of the steps taken in the discipline process, and/or clearly identify their own reasons for eschewing any progressive discipline steps.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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