Date: 19980310
Docket: T-613-97
BETWEEN:
S.S. STEAMSHIPS CO. LTD.
Applicant
- AND -
JENNIFER ELVIDGE,
HUMAN RESOURCES DEVELOPMENT
CANADA, LABOUR DIRECTORATE
and MINISTER OF LABOUR
Respondents
Reasons for Order
NADON J.:
[1] The applicant seeks to set aside the decision of Yves Laberge, an Inspector with the Human Resources Development Canada Labour Directorate (the "Labour Directorate") which was communicated to the applicant on March 6, 1997. In that decision Mr. Laberge decided to submit to the Minister of Labour a request by Jennifer Elvidge (the "respondent") that an adjudicator be appointed pursuant to subsection 241(3) of the Canada Labour Code , R.S.C., c. L-2 (the "Code"). Ms. Elvidge"s request stemmed from her complaint that she had been unjustly dismissed by S.S. Steamships Co. Ltd. (the "applicant").
[2] The relevant facts are as follows. On August 31, 1994, the applicant hired the respondent as a documentation clerk. The terms of employment included a three-month trial probation and a salary of $16,000.00 per annum to be paid on a semi-monthly basis.
[3] By letter dated August 31, 1995, the respondent informed her employer that she was resigning and that her last day of employment would be Thursday, September 7, 1995. The respondent left her employment with the applicant because she had found another position. Although her last day of employment was to be September 7, 1995, the respondent did not show up for work between September 1 and September 7.
[4] By reason of the respondent"s resignation, the applicant"s group insurers, Sun Life of Canada, were advised on September 5, 1995 that, after September 7, 1995, the respondent would no longer be an employee of the applicant and, hence, would not be covered under the Group Insurance Policy.
[5] On September 11, 1995, the respondent attended the applicant"s place of business and asked Mr. Kimber, the president of the applicant, to reinstate her in her former position. Mr. Kimber informed the respondent that he was prepared to rehire her but on different terms of employment, as her former position had been filled by a new employee. It was agreed that the respondent would be hired temporarily and paid on an hourly basis as of September 11, 1995. On October 30, 1995, the respondent was hired on a permanent basis. From that point on, the respondent received a salary of $700.33 on a semi-monthly basis.
[6] As a result of the respondent"s status changing from that of a temporary employee to a permanent employee, the applicant re-enrolled the respondent in its group insurance coverage with Sun Life of Canada. On November 23, 1995, Sun Life of Canada wrote to the applicant to advise that the respondent"s enrollment card had been received and that her coverage would be effective February 1, 1996.
[7] On August 20, 1996, the respondent was dismissed by the applicant. On that day, the applicant was given a letter which reads as follows:
As per our discussion this morning, this is to confirm that you have been terminated as of today.
[8] On September 19, 1996, the applicant received a letter from the Labour Directorate advising it that the respondent had filed a complaint pursuant to section 240 of the Code, alleging that she had been unjustly dismissed from her employment. By its letter, the Labour Directorate requested that the applicant provide a written statement setting forth the reasons for the dismissal. On October 18, 1996, Mr. Kimber and the manager of the accounting and administrative departments of the applicant met with Inspector Laberge to discuss the respondent"s complaint of unfair dismissal. During the meeting, the applicant"s representatives provided to Inspector Laberge details of the respondent"s work history with the applicant.
[9] By letter dated October 24, 1996, Inspector Laberge wrote to the respondent to advise her that her complaint of unjust dismissal did not meet the requirements of section 240 of the Code in that she had not completed twelve consecutive months of continuous employment with the applicant when she was dismissed on August 20, 1996.
[10] On January 23, 1997, Inspector Laberge wrote to the applicant to advise that, following a letter received from the respondent"s solicitors on December 23, 1996, his department had reexamined the file and, as a result, his department "did not endorse my decision". Inspector Laberge then advised the applicant that he was "inviting [them] to undertake the mediation process". Inspector Laberge further advised the applicant that, unless he received an answer within fifteen days, he would be referring the matter to an adjudicator.
[11] On March 5, 1997, the applicant"s solicitors advised Inspector Laberge that the applicant was not interested in proceeding to mediation. On March 6, 1997, Inspector Laberge wrote to the applicant and its solicitors to advise them that he had received a letter from the respondent"s solicitors requesting that the respondent"s complaint of unjust dismissal be addressed to an adjudicator pursuant to subsection 241(3) of the Code.
[12] The sole issue for determination herein is whether the respondent had completed twelve consecutive months of continuous employment by the applicant and hence, whether her complaint could be referred to an adjudicator by the Minister pursuant to subsection 242(1) of the Code.
[13] The relevant provisions of law are sections 240, 241 and 242(1) of the Code which read as follows:
| 240. (1) Subject to subsections (2) and 242(3.1), 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. |
| (2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed. |
| (3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority. |
| 241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made. |
| (2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so. |
| (3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1), |
| (a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and |
| (b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint. |
242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).
[14] Pursuant to subsection 240(1) of the Code, an employee who considers his or her dismissal to be unjust may file a complaint with an inspector if that employee comes within the parameters of paragraphs (a) and (b) of subsection 240(1). The applicant"s submission is that the respondent, at the time she was dismissed, had not completed twelve consecutive months of continuous employment. According to the applicant, the respondent could not file a complaint with Inspector Laberge, and hence, the matter could not be referred to an adjudicator pursuant to subsection 242(1) of the Code. For the reasons that follow, I agree with the position taken by the applicant.
[15] I have no doubt that the respondent resigned from her employment with the applicant as her resignation letter is unequivocal. The respondent left her employment with the applicant on September 7, 1995 to work for a freight-forwarder in Montreal. The respondent recommenced employment with the applicant on September 11, 1995. Since the respondent was dismissed from her employment on August 20, 1996, she had not completed twelve consecutive months of continuous employment with the applicant when she was dismissed.
[16] In order for her complaint to be referred by the Minister to an adjudicator pursuant to subsection 242(1) of the Code, the respondent had to establish that she had completed twelve consecutive months of continuous employment by the applicant. She has failed to establish this fact. Consequently, Inspector Laberge ought to have refused to entertain the respondent"s complaint. Needless to say, in these circumstances, the Minister cannot refer the respondent"s complaint to an adjudicator.
[17] Consequently, this application for judicial review shall be allowed. The decision of Inspector Yves Laberge to submit the respondent"s request to the Minister of Labour that an adjudicator be appointed pursuant to subsection 241(3) of the Canada Labour Code shall be quashed. Further, the Minister of Labour shall be prohibited from appointing an adjudicator to hear and adjudicate upon the respondent"s complaint of unjust dismissal.
"MARC NADON"
Judge
Ottawa, Ontario
March 10, 1998