Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends Supreme Court upholds just-cause requirement for federal workers Code's intention is to protect non-unionized workers from arbitrary dismissal BY JAMES LENOURY On July 14, 2016, the Supreme Court of Can- ada released its landmark decision in Wilson v. Atomic Energy Canada Limited (AECL). James LeNoury acted as counsel to the suc- cessful appellant, Joseph Wilson. Below, he provides a brief personal account of the case. Joe Wilson was dismissed after five-and- a-half years of service with AECL. He be- lieved his dismissal was in reprisal for having reported unlawful practices in the corpora- tion. AECL asserted no cause, offered no reasons for dismissal, and provided a sever- ance package close to six months' salary. In order to assess Wilson's case, I turned to the existing case law. At the time, the vast majority of adjudicators had interpreted the unjust dismissal provisions (ss. 240-246) to mean that, except in circumstances involv- ing lack of work or elimination of the posi- tion, non-managerial employees could only be terminated for just cause. Absent just cause, dismissal was unjust and the employer typically had to make the employee "whole" for all losses incurred from the dismissal. If AECL's dismissal of Wilson was indeed motivated by his whistle-blowing, I antici- pated his severance package was grossly in- adequate. However, when I agreed to accept the case, I also based my decision on practi- cal considerations. As an experienced lawyer who predomi- nantly represents employers, I concluded that if I were acting for AECL, I would have sought to resolve this case expeditiously to minimize my client's costs. And I certainly wouldn't look to attract unnecessary atten- tion to a case that raised a scandal over work- place corruption. Accordingly, not only did I expect Wilson's complaint to succeed, but I believed it would run its course quickly. Instead, more than four years later, Wil- son's complaint is only just finally approach- ing its resolution. What happened? Instead of acknowledg- ing Wilson's unjust dismissal, AECL argued that because the severance pay exceeded minimum statutory requirements for eco- nomic terminations, his dismissal without cause was not "unjust." is argument — which had been raised and overwhelmingly denied in all but a small handful of other cases — was soundly rejected by the adju- dicator. Yet, rather than proceed with the remedial portion of the hearing, AECL took their argument to the Federal Court. Unfortunately, a modified version of AE- CL's proposed interpretation gained some traction with the Federal Court. is time, it was our turn to appeal. Given its broad im- pact, affecting nearly 500,000 federal work- ers, it was not a surprise the case eventually made its way to Canada's top court. Ultimately, in last month's authoritative ruling, the Supreme Court of Canada af- firmed the adjudicator's decision and con- firmed the interpretation that had been fol- lowed by the vast majority of adjudicators, lawyers and HR professionals since 1978. While the court's decision has attracted considerable attention because of its wide application federally, its practical effect has not always been properly explained. What is often lost in the discussion is that this deci- sion restores an interpretation of the code that for decades was regarded as having ben- efited both employees and employers alike. From the code's enactment in 1978 until AECL's Federal Court challenge, the unjust dismissal complaint mechanism operated within everyone's expectations and, general- ly, their satisfaction. Although AECL argued the "sky was falling," and interveners railed against "jobs for life," the Supreme Court could distinguish fact from fear-mongering. One of the key points in persuading the Supreme Court that a just cause require- ment was the proper interpretation of unjust dismissal was the federal government's pur- pose in introducing the legislation. In 1978, then-Minister of Labour John Munro stated: "e intention of this provision is to pro- vide employees not represented by a union with the right to appeal against arbitrary dismissal — protection the government believes to be a fundamental right of work- ers and already a part of all collective agree- ments." Speaking for the majority of the Supreme Court, Justice Rosalie Abella found the la- bour minister's comments unequivocal in their intention to protect unorganized feder- al workers from arbitrary or unjust dismissal in similar manner to their unionized coun- terparts. Comments by the minister that adjudicators would be expected to consider arbitral case law from collective bargaining law further underscored this intention. But it wasn't just these historical state- ments that swayed the court. Amongst more than 1,700 unjust dismissal cases decided prior to Wilson v. AECL, only 18 rejected a requirement for just cause. To the suggestion that such dissent amounted to a legitimate competing interpretation, Justice Abella wryly observed: "What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters. " ough I produced further support in the opinions of legal scholars and the word- ing of the legislation, in my view, the final nail to AECL's position was driven home by one of Canada's most respected labour law authorities, Professor Harry Arthurs. Com- missioned by the labour minister to evalu- ate whether the labour standards in the code effectively served its stakeholders, Profes- sor Arthurs held extensive public hearings, studied more than 100 submissions and briefs, consulted labour experts and indus- try groups, and met with numerous employ- ee and management representatives. Professor Arthurs' 2006 report identified areas for improvement but confirmed the in- terpretation given by the majority of adjudi- cators. He found the complaint mechanism and remedies constituted a cost-effective alternative to civil litigation for both parties. Reinstatement — the ballyhooed "job for life" — had been ordered in only 30 per cent of successful complaints, equating to about 10 per cent of all decisions on the merits. In short, the system in place for 35 years continued to work. For this reason, it isn't only employees, but also employ- ers and HR professionals, who should ap- plaud the Supreme Court's decision. See Wilson v. AECL, 2016 CarswellNat 2998 (S.C.C.). ABOUT THE AUTHOR JAMES LENOURY James LeNoury maintains a law practice in Toronto devoted exclusively to employment and labour law. He can be reached at (416) 926-1107 ext. 234 or jalenoury@lenourylaw.com.

• Cover