While monetary damages are the usual result of legal actions, we all know that in some contexts, reinstatement is a potential remedy. It can occur in grievance arbitrations, human rights claims, and other circumstances. Interestingly, an Ontario arbitrator recently declined to order that a wrongfully dismissed employee be reinstated due to her behaviour during the trial.
The employee was terminated for constantly being late and not following company policy, but the Arbitrator concluded that the termination was unjust because the employer did not apply progressive discipline. Despite this, the Arbitrator held that the employee’s lack of remorse meant that reinstatement was not an option.
In the case of Hussey v Bell Canada, the Complainant, Amanda Hussey (“Hussey”), was employed by the Respondent, Bell Canada (“Bell”), for six years.
Hussey was subject to annual reviews and at the time of her dismissal, her reviews indicated that she “exceeds expectations”. Notably, she was promoted at least four times. However, on many occasions, Hussey breached Bell’s policies regarding punching in and out and punctually. This led to a written warning and when her performance did not improve, her employment was terminated for cause on June 16, 2017.
Consequently, Hussey filed a complaint for unjust dismissal under the Canadian Labour Code.
The Arbitrator held that despite Hussey’s many faults, Bell had an obligation to apply progressive discipline and it failed to do so. The Adjudicator found that Bell was aware of Hussey’s cavalier attitude regarding attendance and scheduling but they did not take much action to correct the situation.
Initially, the Arbitrator remitted the issue of remedy to the parties, with the proviso that he would retain jurisdiction should the parties not be able to reach an agreement.
Ultimately, the parties were not able to reach an agreement and the matter was remitted back to the Arbitrator to decide whether Hussey should be reinstated.
The Arbitrator declined to order that Hussey be reinstated, holding that during the hearing, Hussey’s evidence was comprised largely of excuses for her behaviour which were intended only to avoid responsibility for her conduct. The Arbitrator also commented that although Hussey may have been a good salesperson, she was not a good supervisor.
Damages in lieu of reinstatement
The Arbitrator held that Hussey was entitled to damages in lieu of reinstatement. Hussey’s counsel submitted that damages should be awarded based upon the approach that, but for her termination, Hussey would have continued as a store manager, protected by the just cause provisions set out in s. 240(1)(b) of the Canada Labour Code, and would have eventually been promoted to Regional Manager. Hussey’s counsel submitted that her losses should encompass all of her potential earnings from the time of her termination until her presumptive appointment as Regional Manager.
The Arbitrator found that this approach was too speculative, holding that he would “prefer not to hypothesize as to the manner in which Ms. Hussey might conduct herself, and for how long, if she were to be reinstated.”
Applying the common law approach instead, the Arbitrator awarded Hussey damages as follows:
- Eight months’ pay, reflecting her years of service;
- Four months’ pay, reflecting the just cause protections to which she would have been entitled; and
- Two percent interest on the above.
Following her termination, Hussey was only able to secure jobs that were lower-level positions to the one she had with Bell. As a result, the Arbitrator held that the income she earned from those positions were not to be deducted from the award of damages. For further discussion on what constitutes mitigation income, see my previous First Reference Talks post here.
Written by Stuart Rudner and Anique Dublin.