The presumptive remedy for unjust dismissal is reinstatement with back pay. When tackling the appropriate remedy to award, adjudicators begin with reinstatement with back pay. Depending on the facts of the case, returning the employee to the workplace is the option unless there are circumstances in which it will not be ideal for either the employee or the employer to continue their employment relationship. There are also situations where neither party wants to reunite in the workplace. As we’ll see from the following decision, the facts of the situation can result in an adjudicator deciding it is best to award compensation in lieu of reinstatement rather than requiring the employee to return to work.
Hussey v. Bell Mobility Inc.: The Facts
Ms. Hussey was an employee with Bell’s Virgin Mobile division beginning in September of 2010 where she was a sales representative in one of its Toronto locations. She was promoted twice in her time with Bell. Ms. Hussey was ultimately dismissed in June of 2017, shortly after her second promotion.
While employed with Bell, Ms. Hussey would often arrive late for her shifts and leave early. Due to this issue, Bell provided Ms. Hussey with her one and only written warning in November of 2016 – before she had received her first promotion to a managerial position. However, she maintained her lax approach to the company requirements even after her written warning. Nonetheless, she was still promoted again to her final role at Bell before ultimately being dismissed following staff complaints about her.
Adjudicator Decision to Award Compensation in Lieu of Reinstatement
In 2020, the Federal Court held that Ms. Hussey was unjustly dismissed from her employment with Bell Mobility. However, adjudicator McNamee decided against reinstating the employee to her position with back pay. Instead, he awarded her compensation in lieu of reinstatement.
The adjudicator decided against reinstating her because Ms. Hussey showed a lack of remorse for her actions and felt it was highly probable she would repeat her bad behaviour. During her cross-examination, she continuously made excuses for her behavior, and in the view of the adjudicator, it was merely an attempt to avoid responsibility for her actions. Therefore, the adjudicator did not feel it would be beneficial to reinstate Ms. Hussey.
Once it was determined reinstatement was not appropriate, the next issue dealt with was damages in lieu of reinstatement. Ms. Hussey urged the Adjudicator to adopt the “fixed term approach” which means that the damages are calculated based on the assumption that the ‘dismissed employee would, if not for dismissal, have continued to work for the company from the date of their discharge to their expected retirement.’ This figure combined with a deduction for reasons such as the employee being dismissed again or leaving employment early for health reasons ultimately results in a range of 80-90%. However, he considered the fixed term approach too speculative and “at best an informed guess.” Yet, the Adjudicator did accept the basic premise of the fixed term approach that if an employee is reinstated, they would receive the benefit of the just cause protection under section 240 of the Canada Labour Code. This would then be factored into the damages calculation. As a result, she received 4 months of compensation for this protection as well as 8 months’ pay due to her length of service, salary and benefits at Bell.
Federal Court and Federal Court of Appeal
When it was brought to the Federal Court for judicial review in 2020, the Court found no issue with the decision of the adjudicator. The Federal Court of Appeal also reviewed the case and concurred with the decision.
LINKS:
https://www.canlii.org/en/ca/fct/doc/2020/2020fc795/2020fc795.html