Unjust Dismissal for Federal Employees
Most federally regulated employees rely on the Canada Labour Code as their employment standards legislation, which confers onto them protections for occupational health and safety and protections against unjust dismissal. Under the Code, non-unionized federally regulated employees may be entitled to expansive remedies if they have been unjustly dismissed, which could include things like reinstatement and compensation. For any remedy to be provided under the Code, the first requirement is that the employee actually be dismissed. While this might seem obvious, dismissal can itself be highly controversial, as has been seen in a recent decision at the Canada Industrial Relations Board.
Case Background – Maruschak
The Board recently released a ruling on an unjust dismissal case. In Maruschak, the complainant alleged that he had been unjustly dismissed after he had a performance review meeting with his manager. The complainant advised his manager that he was recording the meeting and was told to end the recording. However, the complainant did not end the recording until he left the meeting. Shortly after the meeting, the complainant alleged he was again approached by his manager who was angrily shouting at him, told him he was faking an injury, called him a slow driver, told him to “finish the day, you’re done”, and that the manager would hire a new driver. After this encounter, the complainant believed he was terminated from his work. The employer contacted him afterwards to ask where he was, telling him that he was not dismissed and that he should report back to work, failing which he would be deemed to have abandoned his employment. Despite this, the complainant did not return to work, believing that he had been terminated and was under no obligation to return to work given the way he was terminated.
The employer’s side of events varied significantly. In particular, the manager stated he was very calm and professional during the performance review meeting. He denied meeting with the complainant afterwards and denied telling the complainant he was faking his injury or that he told him he was “done”. He reached out to the complainant after the weekend to ask if he was coming to work, only for the complainant to reply he was not since the manager fired him the Friday before. The manager asked what he was talking about and told him to report to work, but the complainant did not respond. The complainant did not respond to any phone calls from the manager. Ultimately, HR contacted the complainant to tell him to return to work or else he would be deemed to have abandoned his employment. The entire issue before the Board came down to whether the complainant was unjustly dismissed in the first place or whether he had merely abandoned his employment, hence disentitled to any remedy under the Code.
Credibility
The Board had to engage in a credibility analysis, as it held that neither the complainant nor his manager proved particularly credible without some documentation corroborating their version of events. The Board noted that assessing credibility requires a consideration of “the witness’ motives, the witness’ relationship to the parties, the internal consistency of their evidence and inconsistencies, and contradiction in relation to other witness’ evidence”. In addition, the Board referred to factors considered by the British Columbia Court of Appeal, which include “opportunities for knowledge, powers of observation, judgement and memory, ability to describe clearly what he has seen and heard” to assess credibility. The Board took issue with the complainant’s testimony in that it conflicted with both the recording of his performance review meeting and with a telephone call he recorded with a friend the same day he had been terminated. As for the manager, his testimony was also inconsistent as he initially denied having met with the complainant after the performance review meeting, only to acknowledge he may have done so. Additionally, the manager’s testimony was inconsistent about his temper in interactions with the complainant. The only witness the Board found credible was the HR manager, who was not present during the alleged termination incident. Nevertheless, given the complainant’s own credibility issues, the Board determined that the complainant ultimately abandoned his employment.
Dismissal or Abandonment
Ultimately, the Board determined that the complainant had not been dismissed. In the Board’s view, a reasonable person would not believe the complainant had been dismissed. Firstly, the complainant’s manager had no authority to dismiss anyone on his own, he would need HR authorization. Additionally, the language of “you’re done” was determined to be a frequent phrase which the manager used for ending conversations. These, and the effort to contact the complainant and have him return to work, convinced the Board that the complainant had not actually been dismissed, but had abandoned his job. Since the complainant was not dismissed, he was not entitled to any remedy for unjust dismissal.