Federal Court upholds right of adjudicator to award notice in lieu of reinstatement, even if the adjudicator thinks termination was too severe a penalty
A former human resource staffer who worked for 12 years at the Department of National Defence had his attempt to have his job reinstated dismissed by the Federal Court of Canada. The decision reaffirms the right of adjudicators to award damages in lieu of returning an employee to the job.
Carl Gannon was seeking re-instatement on the grounds that the adjudicator’s decision to award him six-months’ notice in lieu of returning him to the job was incorrect because the same adjudicator said that termination was too severe a punishment.
Gannon was fired from his job as an HR advisor in the human resources division at the naval base in Halifax on Oct. 26, 2000, following a number of reprimands for misconduct. He was under suspension at the time and the dismissal was retroactive to the date he was suspended.
The events leading up to his dismissal began on Nov. 26, 1999, when he received a five-day suspension for forging a signature on a letter written on DND letterhead that inaccurately stated his salary for the purposes of a child support hearing. At this time he was warned, both verbally and in writing, by a superior that “this unethical behaviour is a serious breach of the trust that comprises (the) employer-employee relationship that I cannot in any way condone … further misconduct of any nature will result in a more severe disciplinary penalty up to and including termination of employment.”
It was later discovered that less than 14 days after this suspension he submitted one of four falsified resumes to another government department indicating he had obtained a Bachelor of Arts degree from Dalhousie University with a specialization in HR management. He hadn’t.
In February 2000 Gannon gave the name and resume of Paula Robinson in response to a request for help in staffing a short-term position. He did not tell anyone he had a previous relationship with Robinson that resulted in a child or that there were outstanding childcare issues between them. Robinson was hired and subsequently intimidated by Gannon. Robinson said Gannon told her he controlled her employment and that if she revealed their prior relationship, she would lose her job.
On July 13, 2000, Gannon was suspended without pay pending the outcome of an investigation of abuse of authority in relation to his hiring and alleged intimidation and harassment of Robinson. It’s not clear from court records what sparked the investigation.
The investigation revealed the existence of the false resume sent out after his first suspension and that Gannon had subsequently sent out more false resumes during the current investigation and had attended a job interview at another government department.
It also found Gannon had made extensive use of office e-mails for personal matters that included at least one inappropriate reference to sexual conduct. The DND listed the following items as cause for his dismissal:
•the forged letter;
•falsified resumes;
•inappropriate use of office e-mail;
•abuse of authority;
•failure to abide by hiring procedures; and
•lack of remorse or acceptance of responsibility.
Gannon filed two grievances. Both were denied and referred to adjudication. The adjudicator, Anne Bertrand, upheld the employer’s decision to terminate Gannon but allowed the grievance on the termination and awarded him six-months’ compensation in lieu of reinstatement.
She agreed with most of DND’s reasons for termination, concluding the employment relationship had been fundamentally breached by Gannon’s misconduct and that the employer’s perceived breakdown of trust in the applicant was not unreasonable.
“I find it astonishing that anyone would falsify a curriculum vitae but in particular, one whose profession is human resources at the management level,” the adjudicator wrote in her original decision. “I am left with the impression that if (Gannon) had not been caught, he would have continued as he had done in the past, for the facts show that the grievor did not choose to correct his behaviour after receiving the written warning of November 1999.”
But in light of certain mitigating factors, such as lengthy service, a good work record and potential future difficulties in obtaining employment, she determined the penalty of discharge was too severe and awarded compensation.
Gannon appealed the adjudicator’s decision not to reinstate him. The fundamental question before the Federal Court was whether or not the adjudicator erred in law or refused to exercise her jurisdiction when allowing the grievance on termination but not reinstating Gannon to his previous position or an equivalent one.
Gannon argued his superiors who held the view that trust had been irreparably harmed were “far up the chain of command” and did not interact with him. He said there is no evidence that his immediate manager and others he interacted with had lost trust in him and, as such, the adjudicator’s finding was patently unreasonable. The Federal Court disagreed.
“This argument is simply without merit,” Justice Edmond P. Blanchard wrote in his decision. “Senior management in any organization is responsible for the overall management of the operation and must be able to trust that employees will properly carry out their mandated responsibilities… When senior management no longer trusts an employee, it matters little if co-workers are of a different view. An employee is ultimately accountable to his employer and not solely to individuals to whom he directly reports.”
The judge further said the decision not to reinstate Gannon was the correct one. He said it is firmly established in law that issues relating to the termination of employment are within an adjudicator’s jurisdiction.
“For me to exercise my discretion and impose a lesser penalty in this case would entail reinstating the grievor with a suspension,” he said. “I am not prepared to do so. The employment relationship with the grievor has been fundamentally breached by his own misconduct and the employer’s perceived breakdown of the trust in this employee is not unreasonable given the facts of this case.”
The judge said it was within the adjudicator’s decision to award six-months’ compensation in lieu of reinstatement and that her decision to do so was “not patently unreasonable.”
For more information see:
•Gannon v. Canada (Attorney General), 2004 FC 1532 (Fed. T.D.)
Carl Gannon was seeking re-instatement on the grounds that the adjudicator’s decision to award him six-months’ notice in lieu of returning him to the job was incorrect because the same adjudicator said that termination was too severe a punishment.
Gannon was fired from his job as an HR advisor in the human resources division at the naval base in Halifax on Oct. 26, 2000, following a number of reprimands for misconduct. He was under suspension at the time and the dismissal was retroactive to the date he was suspended.
The events leading up to his dismissal began on Nov. 26, 1999, when he received a five-day suspension for forging a signature on a letter written on DND letterhead that inaccurately stated his salary for the purposes of a child support hearing. At this time he was warned, both verbally and in writing, by a superior that “this unethical behaviour is a serious breach of the trust that comprises (the) employer-employee relationship that I cannot in any way condone … further misconduct of any nature will result in a more severe disciplinary penalty up to and including termination of employment.”
It was later discovered that less than 14 days after this suspension he submitted one of four falsified resumes to another government department indicating he had obtained a Bachelor of Arts degree from Dalhousie University with a specialization in HR management. He hadn’t.
In February 2000 Gannon gave the name and resume of Paula Robinson in response to a request for help in staffing a short-term position. He did not tell anyone he had a previous relationship with Robinson that resulted in a child or that there were outstanding childcare issues between them. Robinson was hired and subsequently intimidated by Gannon. Robinson said Gannon told her he controlled her employment and that if she revealed their prior relationship, she would lose her job.
On July 13, 2000, Gannon was suspended without pay pending the outcome of an investigation of abuse of authority in relation to his hiring and alleged intimidation and harassment of Robinson. It’s not clear from court records what sparked the investigation.
The investigation revealed the existence of the false resume sent out after his first suspension and that Gannon had subsequently sent out more false resumes during the current investigation and had attended a job interview at another government department.
It also found Gannon had made extensive use of office e-mails for personal matters that included at least one inappropriate reference to sexual conduct. The DND listed the following items as cause for his dismissal:
•the forged letter;
•falsified resumes;
•inappropriate use of office e-mail;
•abuse of authority;
•failure to abide by hiring procedures; and
•lack of remorse or acceptance of responsibility.
Gannon filed two grievances. Both were denied and referred to adjudication. The adjudicator, Anne Bertrand, upheld the employer’s decision to terminate Gannon but allowed the grievance on the termination and awarded him six-months’ compensation in lieu of reinstatement.
She agreed with most of DND’s reasons for termination, concluding the employment relationship had been fundamentally breached by Gannon’s misconduct and that the employer’s perceived breakdown of trust in the applicant was not unreasonable.
“I find it astonishing that anyone would falsify a curriculum vitae but in particular, one whose profession is human resources at the management level,” the adjudicator wrote in her original decision. “I am left with the impression that if (Gannon) had not been caught, he would have continued as he had done in the past, for the facts show that the grievor did not choose to correct his behaviour after receiving the written warning of November 1999.”
But in light of certain mitigating factors, such as lengthy service, a good work record and potential future difficulties in obtaining employment, she determined the penalty of discharge was too severe and awarded compensation.
Gannon appealed the adjudicator’s decision not to reinstate him. The fundamental question before the Federal Court was whether or not the adjudicator erred in law or refused to exercise her jurisdiction when allowing the grievance on termination but not reinstating Gannon to his previous position or an equivalent one.
Gannon argued his superiors who held the view that trust had been irreparably harmed were “far up the chain of command” and did not interact with him. He said there is no evidence that his immediate manager and others he interacted with had lost trust in him and, as such, the adjudicator’s finding was patently unreasonable. The Federal Court disagreed.
“This argument is simply without merit,” Justice Edmond P. Blanchard wrote in his decision. “Senior management in any organization is responsible for the overall management of the operation and must be able to trust that employees will properly carry out their mandated responsibilities… When senior management no longer trusts an employee, it matters little if co-workers are of a different view. An employee is ultimately accountable to his employer and not solely to individuals to whom he directly reports.”
The judge further said the decision not to reinstate Gannon was the correct one. He said it is firmly established in law that issues relating to the termination of employment are within an adjudicator’s jurisdiction.
“For me to exercise my discretion and impose a lesser penalty in this case would entail reinstating the grievor with a suspension,” he said. “I am not prepared to do so. The employment relationship with the grievor has been fundamentally breached by his own misconduct and the employer’s perceived breakdown of the trust in this employee is not unreasonable given the facts of this case.”
The judge said it was within the adjudicator’s decision to award six-months’ compensation in lieu of reinstatement and that her decision to do so was “not patently unreasonable.”
For more information see:
•Gannon v. Canada (Attorney General), 2004 FC 1532 (Fed. T.D.)
